IN THE MATTER OF THE VALUATION OF BELL ATLANTIC MOBILE OF MASSACHUSETTS CORPORATION, LTD.

BOTSFORD, J. The present case is a sequel to this court's decision in Bell Atl. Mobile of Mass. Corp. v. Commissioner of Revenue, 451 Mass. 280 (2008) (Bell Atl. Mobile I). In that case, we reviewed appeals brought before the Appellate Tax Board (board) under G. L. c. 59, § 39 (§ 39), in which Bell Atlantic Mobile of Massachusetts Corporation, Ltd. (Bell

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Atlantic Mobile, or the taxpayer) and the board of assessors of Newton had each appealed from the Commissioner of Revenue's (commissioner's) central valuation of Bell Atlantic Mobile's personal property for fiscal year (FY) 2004. We affirmed the board's determination that Bell Atlantic Mobile was not a "telephone company" within the meaning of § 39 and therefore not entitled to central valuation. Bell Atl. Mobile I, supra at 282-283. Before the date of our decision, however, the commissioner had continued to certify central valuations of Bell Atlantic Mobile's property for years before and after 2004. In the present case, we must decide whether the board has jurisdiction under § 39 to hear appeals, timely filed with the board pursuant to that statute by certain municipal boards of assessors, to challenge the commissioner's certified central valuations for those additional years, even though, as Bell Atl. Mobile I indicates, the central valuations were made in error. We conclude that the statute confers jurisdiction on the board to hear the assessors' appeals. [Note 1]

1. Background. Pursuant to § 39, on or before May 15 of each year, the commissioner must value centrally "machinery, poles, wires and underground conduits, wires and pipes" (§ 39 property) of all telephone and telegraph companies. The valuations must be certified to the owners of the § 39 property and to the assessors of the cities and towns where the § 39 property is located and therefore subject to taxation. See G. L. c. 59, § 39. See also RCN-BecoCom, LLC v. Commissioner of Revenue, 443 Mass. 198, 199 (2005). The assessors of the cities and towns must use the commissioner's certified valuations for tax assessment purposes. See Assessors of Springfield v. New England Tel. & Tel. Co., 330 Mass. 198, 200-201 (1953). However, § 39 gives the assessors, as well as the taxpayer-owner of the § 39 property, the right to appeal from the commissioner's value determinations to the board on or before June 15 of the taxable year. [Note 2]

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At all relevant times, Bell Atlantic Mobile [Note 3] provided wireless cellular telecommunications services, or what is generally known as "cell phone" service. For FY 2003 through FY 2008, the commissioner determined that Bell Atlantic Mobile was a "telephone company" within the meaning of § 39, and accordingly certified a central valuation of its § 39 property for each of these years. In addition, for FY 2003, and for FY 2005 through FY 2007, the commissioner determined that Bell Atlantic Mobile was eligible for the property tax exemption granted to certain foreign utility corporations under G. L. c. 59, § 5, Sixteenth (1) (d), as incorporating G. L. c. 63, § 52A (1) (a) (iii) (corporate utility exemption). [Note 4] The commissioner ruled that Bell Atlantic Mobile was not eligible for the corporate utility exemption in FY 2004, or in FY 2008. [Note 5] The difference in the valuations when Bell Atlantic Mobile was granted the corporate utility exemption compared to when it was not is significant. For example, for Bell Atlantic Mobile's personal property situated in Newton, the commissioner's certified values exceeded $6,000,000 in the years Bell Atlantic Mobile was denied the corporate utility

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exemption; comparatively, in the years the corporate utility exemption was applied, the commissioner's valuation was under $30,000. [Note 6]

Of relevance to this case is the fact that for FY 2003 and FY 2004, the board of assessors of Newton (Newton assessors) filed appeals with the board under § 39 (§ 39 appeals), and for FY 2005 through FY 2008, the assessors of various cities and towns, including Newton, Boston, Springfield, and Cambridge, filed additional § 39 appeals, challenging the commissioner's valuations. Some or all of these appeals argued that Bell Atlantic Mobile was not a "telephone company" for purposes of § 39, and therefore not entitled to central valuation of its personal property by the commissioner; some or all argued in addition that the company was not entitled to the corporate utility exemption, and therefore its machinery (see note 8, infra) constituted taxable property. [Note 7] For FY 2004 and FY 2008, Bell Atlantic Mobile filed its own appeals -- under both § 39 and G. L. c. 59, § 65 (§ 65); see note 2, supra -- from the taxes assessed by the 220 cities and towns where its property was located. These appeals claimed that the taxpayer's property had been overvalued by the local assessors, and sought as relief the abatement of the property taxes it had paid.

The board dealt first with the various FY 2004 appeals. As we described in Bell Atl. Mobile I, 451 Mass. at 281-283, the board consolidated the Newton assessors' § 39 appeal with Bell Atlantic Mobile's §§ 39 and 65 appeals but then bifurcated the

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issues for trial. The board held hearings on the issue of Bell Atlantic Mobile's eligibility for (1) central valuation -- in other words, whether Bell Atlantic Mobile was in fact a "telephone company" within the meaning of § 39 -- and (2) the corporate utility exemption; [Note 8] it deferred all questions of the correct value of the taxable property. On May 15, 2006, the board issued a decision in which it concluded that Bell Atlantic Mobile was not a telephone company and therefore not entitled to central valuation under § 39 (2006 decision). On that same date, the board issued a separate order with respect to Bell Atlantic Mobile's appeals under § 65; it ruled that the company was not entitled to the corporate utility exemption but stayed any further action in relation to the § 65 appeals pending appellate review of its 2006 decision under § 39. Bell Atlantic Mobile duly filed an appeal from the 2006 decision. After granting direct appellate review, we affirmed the board's determination. See Bell Atl. Mobile I, supra at 283.

Following the issuance of our decision in Bell Atl. Mobile I, the Newton assessors and the board of assessors of Boston (Boston assessors) filed motions to consolidate their § 39 appeals -- appeals for FY 2003 through FY 2008 in the case of the Newton assessors, and for FY 2005 through FY 2008 in the case of the Boston assessors -- with Bell Atlantic Mobile's § 65 appeals. At the hearing on the motions to consolidate, the board advised the parties that as a result of this court's decision in Bell Atl. Mobile I, the board intended to dismiss all the remaining § 39 appeals filed by the various boards of assessors and by Bell Atlantic Mobile for lack of jurisdiction. Thereafter, on June 19, 2008, the board sua sponte issued a decision ordering the dismissal of all § 39 appeals, [Note 9] and at the request of the

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commissioner and several boards of assessors, on December 3, 2008, the board issued its findings of fact and report. The board concluded that its 2006 decision and this court's decision in Bell Atl. Mobile I, supra, were "dispositive" as to the remaining § 39 appeals and, in the case of the Newton assessors, that principles of res judicata, collateral estoppel, and issue preclusion independently prevented them from relitigating the undervaluation claim because the Newton assessors had been a party to Bell Atl. Mobile I. The board further observed that the assessors had not pursued alternative avenues to challenge the commissioner's valuations of Bell Atlantic Mobile's property, such as a declaratory judgment action or an action in the nature of mandamus. The Newton assessors, the Boston assessors, and the boards of assessors of Cambridge and Springfield (collectively, assessors) filed appeals from the board's decision dismissing their § 39 appeals (2008 decision). [Note 10] We granted the assessors' joint application for direct appellate review and now reverse the decision of the board.

2. Discussion. The question presented by this appeal is one of statutory construction. It concerns the scope of the board's authority under § 39 to decide appeals that were, at the time of filing, properly before the board pursuant to that statute. The board interpreted § 39 to mean that once the board determined Bell Atlantic Mobile was not a telephone company, the board was without jurisdiction to continue to entertain the pending appeals and therefore could not consider the challenges to the commissioner's valuation determinations.

The board is an agency charged with the administration of tax laws and has expertise in tax matters, and therefore we may give weight to the board's interpretation of a tax statute. Bell Atl. Mobile I, 451 Mass. at 283, quoting Commissioner of Revenue v. McGraw-Hill, Inc., 383 Mass. 397, 401 (1981). See Matter of the Valuation of MCI WorldCom Network Servs., Inc., 454 Mass. 635, 641 (2009). Ultimately, however, a question of statutory interpretation is a question of law for the court to resolve. See AA Transp. Co. v. Commissioner of Revenue, 454 Mass. 114,

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118-119 (2009); Bell Atl. Mobile I, supra. For the reasons that follow, we interpret § 39 in a manner that differs from the board.

We begin with the statutory language itself. [Note 11] As previously summarized, the first paragraph of § 39 directs the commissioner annually to value all the § 39 property of a telephone or telegraph company and certify the valuation to the company as well as to every board of assessors of a municipality where any such property is located. The first paragraph further provides that the company, as well as each board of assessors, may appeal

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to the board from the valuation by June 15, and that "[e]very such appeal shall relate to the [commissioner's] valuation" for the particular company. The second paragraph of § 39 in turn requires every board of assessors to assess the company's property "as certified and at the value determined by the commissioner . . . under this section," subject to later adjustment -- by tax abatement or additional tax collection -- based on the final result of any appeal from the commissioner's central valuation that has been filed with the board pursuant to the first paragraph. See Assessors of Springfield v. New England Tel. & Tel. Co., 330 Mass. at 201. The language of § 39 was designed to give power to the commissioner to conduct central valuations of certain types of property for the purpose of ensuring valuation "consistency and competence." RCN-BecoCom, LLC v. Commissioner of Revenue, 443 Mass. at 199. It is a remedial statute, "not enacted to exempt the companies' property from taxation." Id. at 201.

As a remedial measure, "the statute must be construed and applied expansively in order to achieve the Legislature's goals." Id. The board itself has previously adopted a broad interpretation of the scope of its jurisdiction under § 39. As it did in the present case, the board in RCN-BecoCom, LLC vs. Commissioner of Revenue, Docket Nos. F253495, F257397 (Aug. 19, 2003), aff'd, 443 Mass. 198 (2005), asserted jurisdiction under § 39 to decide whether the commissioner had correctly determined that a particular company was a "telephone" or "telegraph" company. [Note 12] The board did so even though § 39 does not state or imply that the board make a threshold determination concerning the accuracy of the commissioner's classification decision, and despite the fact that an independent statutory provision, G. L. c. 58, § 2, provides the board with jurisdiction to hear appeals by "[a]ny person aggrieved by any classification made by the commissioner under any provision of [G. L. c. 59]." We

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agree that the board may choose to review a classification decision as part of its consideration of a § 39 appeal. However, if the board chooses to do so and determines, contrary to the commissioner, that a particular company is not a telephone company, such a determination leaves unaddressed the facts that (1) a central valuation of that company's "machinery, poles, wires and underground conduits, wires and pipes" (i.e., § 39 property) has been made and certified by the commissioner; and (2) the assessors are obligated to use the valuation as the basis of their tax assessments.

In determining the scope of the board's jurisdiction under § 39 to hear appeals, our goal is to carry out the intent of the Legislature. See, e.g., Acting Supt. of Bournewood Hosp. v. Baker, 431 Mass. 101, 104 (2000), quoting Industrial Fin. Corp. v. State Tax Comm'n, 367 Mass. 360, 364 (1975). To that end, we examine the whole statute, seeking an interpretation that is true to the legislative purpose and will make it an effective piece of legislation. See, e.g., Harvard Crimson, Inc. v. President & Fellows of Harvard College, 445 Mass. 745, 749 (2006); Wolfe v. Gormally, 440 Mass. 699, 704 (2004). See also EMC Corp. v. Commissioner of Revenue, 433 Mass. 568, 574 (2001), quoting State Tax Comm'n v. La Touraine Coffee Co., 361 Mass. 773, 778 (1972) (statute "should be construed as 'a consistent and harmonious whole, capable of producing a rational result consonant with common sense and sound judgment' "). In considering that § 39 was enacted to establish and support the commissioner's authority to perform central valuations of telephone company property; the express language of the statute confers on those affected by the central valuation the right to appeal and seek review of it by the board; and the act of centrally valuing a company's § 39 property has direct and continuing consequences for both the company and the boards of assessors, we think the principles of statutory construction just cited point to an interpretation of § 39 that authorizes the board fully to consider and decide all pending appeals from the valuation.

Accordingly, we hold that where the commissioner classifies a company as a "telephone or telegraph company" and certifies a central valuation of the company's property under § 39, and timely appeals from that central valuation have been filed by the assessors, the company, or both, the board has jurisdiction

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to hear and decide all the issues raised in such appeals, even if it concludes that the company did not qualify as a telephone or telegraph company. [Note 13] The board's contrary interpretation, supported by Bell Atlantic Mobile, ignores § 39's express provisions establishing the rights of the affected assessors and taxpaying company to appeal from the commissioner's central valuation. See Assessors of Springfield v. New England Tel. & Tel. Co., 330 Mass. at 201 (requirement of central assessment under § 39 mandatory; otherwise, there would be "no point in granting to the assessors a right to appeal from the commissioner's valuation to the [board]"). The interpretation also may lead to a result that runs counter to the statute's underlying legislative intent, see RCN-BecoCom, LLC v. Commissioner of Revenue, 443 Mass. at 201, by effectively freeing from taxation any portion of a company's personal property that the commissioner has erroneously misclassified as exempt. [Note 14]

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The interpretation of § 39 that we adopt here is not precluded by our decision in Bell Atl. Mobile I. The board interpreted our decision in that case as agreeing with its view that once it decided Bell Atlantic Mobile was not a telephone company, that determination effectively required the board to dismiss all the pending § 39 appeals. However, the footnote in our opinion relied on by the board, see Bell Atl. Mobile I, 451 Mass. at 285 n.11, constituted a description of actions taken by the board, not a ruling on their merits. The only issue before us in Bell Atl. Mobile I was the correctness of the board's determination that Bell Atlantic Mobile was not a telephone company for purposes of § 39. The question whether the board retained jurisdiction to decide the valuation issues raised in the assessors' (and the taxpayer's) § 39 appeals once the board made this determination was not raised, and we did not decide it. [Note 15]

Further, our resolution of the question now before us does not confer unlimited rights of appeal. Appeals to the board remain subject to the board's rules of practice and procedure, codified at 831 Code Mass. Regs. §§ 1.00 (2007). "A claim of appeal shall be filed with the clerk of the Board in accordance with the Massachusetts Rules of Appellate Procedure . . . ." 831 Code Mass. Regs. § 1.35 (2007). Rule 4 (a) of the Massachusetts Rules of Appellate Procedure, as amended, 430 Mass. 1603 (1999), provides that, in a civil case, the notice of appeal must be filed with the clerk "within thirty days of the date of the entry of the judgment appealed from."

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In the present case, only the assessors of the cities of Newton, Boston, Springfield, and Cambridge filed claims of appeal from the board's sua sponte dismissal of their § 39 appeals. As these appeals were each filed within thirty days of December 3, 2008, the date the board issued its findings of fact and report, on remand, these assessors are entitled to have the board entertain their § 39 appeals that the board dismissed. [Note 16] The approximately forty-six other boards of assessors whose § 39 appeals were also dismissed as of December 3, 2008, see note 10, supra, may not now file an appeal from the board's decision; the thirty-day filing deadline has long passed. See Friedman v. Board of Registration in Med., 414 Mass. 663, 665 (1993), citing Harper v. Division of Water Pollution Control, 412 Mass. 464, 465 (1992).

Finally, Bell Atlantic Mobile argues that one-half of the assessors' § 39 appeals are moot because of agreements reached between the relevant assessors and Bell Atlantic Mobile as to

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the value of Bell Atlantic Mobile's § 39 property for fiscal years 2006, 2007, and 2008. The question before us, however, concerns only the scope of the statutory grant of jurisdiction to the board under G. L. c. 59, § 39. Because we find the board has jurisdiction to hear the assessors' § 39 appeals, questions concerning mootness are best reserved for the board to resolve.

3. Conclusion. The decision of the Appellate Tax Board is reversed. The case is remanded to the board for consideration of the assessors' § 39 appeals on the merits and for any further proceedings consistent with this opinion.

So ordered.