Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
SECTION 1. Chapter 14 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by inserting after section 7 the following section:-
Section 8. To promote the fair and equitable enforcement of the tax laws of the commonwealth, the commissioner shall establish annual training programs for all employees of the department of revenue, including those in managerial or supervisory positions, who work directly in tax administration, in particular those in the audit, customer service and legal bureaus. Such training shall be designed to ensure that audits are conducted on a consistent basis and that information provided to taxpayers is accurate. Further, the commissioner shall establish periodic training programs to ensure that all employees who work directly in tax administration are informed of and understand the department of revenue's policy concerning recent developments in the tax law, including the department of revenue's interpretation of recent court decisions and regulatory changes.
SECTION 2. The General Laws are hereby amended by striking out chapter 58A and inserting in place thereof the following chapter:-
CHAPTER 58A. APPELLATE TAX BOARD.
Section 1. There shall be in the executive office of administration and finance, but not subject to its control in the conduct of its adjudicatory functions, an appellate tax board, in this chapter referred to as the board, consisting of five members, appointed by the governor, with the advice and consent of the council, who shall be appointed for six year terms from March first in the year of appointment. The governor, with the advice and consent of the council, shall designate one of the members as chairman of said board, in this chapter referred to as the chairman. Upon the expiration of the term of office of a member, his successor shall be appointed in the manner aforesaid for a term of six years. The chairman shall receive as compensation 75 per cent of the salary received by the chief administrative justice of the trial court, and each other member of the board shall receive as compensation 75 per cent of the salary received by an associate justice of the trial court, as provided in section 4 of chapter 211B.
Members shall devote their full time during business hours to the duties of their offices. All members of the board shall devote their time during office hours to the work of the board. No member of the board, while a member, shall act as attorney, counselor or accountant in any contested matter before the department of revenue, before any board of assessors, before the courts of the commonwealth or the federal courts. Not more than three members of the board shall be members of the same political party.
A member may be removed by the council, upon request of the governor and upon notice and hearing, for neglect of duty, inability to perform duties, malfeasance in office, or for other good cause.
Members shall be subject to an annual written performance evaluation to be completed by the chairman. In addition to the standard criteria applicable to the evaluation of equivalent grade managers employed by the commonwealth, members shall also be evaluated upon: efficiency and fairness in the conduct of hearings; promptness in issuing decisions in single member and small claims cases; the ability to coordinate, oversee, draft and otherwise contribute to the expeditious issuance of written findings of fact and reports with the assistance of the legal department in cases assigned to the member; the total number of proceedings of comparable matters handled and orders and decisions issued in those matters; contributions to the management and reduction of the board's caseload; any written complaints or commendations received and verified; compliance with this chapter and other applicable chapters of the General Laws; and other information that may be relevant. The chairman shall take into consideration the complexity of cases in making his evaluation. Such performance evaluation may be used as evidence of a member's inability to perform his duties.
The chairman shall be subject to an annual written performance evaluation to be completed by the governor's chief legal counsel that includes evaluation of the management of the board's caseload, the ability to manage effectively the daily operations of the board and the personnel of the board, and the evaluation criteria applicable to members of the board, as appropriate. Such performance evaluation may be used by the governor as evidence of a chairman's inability to perform his duties.
The chairman, with the advice and consent of the governor's council, shall be authorized, subject to appropriation, to hire additional members on a full-time, temporary basis to hear such cases as may be heard by a single member as outlined in section 1A. For purposes of this section, temporary basis shall mean for a one year period and such period may be extended for an additional year by the chairman, if necessary. Any member of the board, hired on a temporary basis, shall devote his full time during business hours to the duties of the office. A temporary member of the board shall devote his whole time during office hours to the work of the board, and shall not act as attorney, counsellor or accountant in any contested matter before the department of revenue, before any board of assessors, before the courts of the commonwealth, or before the federal courts. Said member shall receive 90 per cent of the annual compensation of appointed members as outlined in section 1.
A vacancy in the board shall not impair its powers nor affect its duties. The board shall have a seal that shall be judicially noticed.
Section 1A. The majority of the members of the board shall constitute a quorum for the transaction of its business. For purposes of this section, temporary members shall not be counted for purposes of a quorum, and shall not vote on board matters other than upon specific cases to which they are assigned by the chairman. A single member of the board may decide the following types of cases:
(i) cases on appeal from a board of assessors where the assessed value of the property involved does not exceed $500,000;
(ii) cases on appeal from a board of assessors where the assessed value exceeds $500,000 but does not exceed $750,000 when the appellant and appellee gives written consent to a decision by a single member;
(iii) cases heard under the informal procedure in which the assessed value is less than $1,000,000 as provided in section 7A or the small claims procedure as provided in section 7B.
In any such appeal, upon request and upon the filing of such written consent the appeal shall be advanced for speedy hearing.
Such decision shall be signed by the single member of the board who presided at the hearing, and such case shall be attributed to said single member for tracking and evaluation purposes.
Section 2. The principal office of the board shall be in Boston but said board may sit at any place within the commonwealth. The time and place of its meetings shall be prescribed by the chairman, and the chairman shall assign all members for the hearings held outside of Boston on a rotating basis, taking into consideration the expertise, qualifications, travel involved and needs of the entire board when determining the rotation. The county commissioners shall provide the board with suitable rooms in courthouses or other buildings when necessary for hearings outside the city of Boston. Adequate offices and a hearing room in the state house or elsewhere in said city shall be provided for the board.
Section 3. The board shall provide for the publication and sale or distribution of such of its reports and opinions as are of public interest, in such form and manner as it may deem best adapted for public convenience and use, upon such terms and conditions as may be approved by the governor and council.
Section 4. The board shall report annually to the general court such suggestions and recommendations for the amendment, alteration and modification of existing laws relative to taxation and related matters, as it may deem desirable, and shall include in such report a statement of the number and type of matters handled by it during the preceding state fiscal year and the number of matters pending at the end of the year. Such report shall further provide the aggregate number and type of cases assigned to each member, the manner by which the case was disposed of and the average length of time for issuing a decision from the date of the close of the record.
Section 5. The members and employees of the board shall receive their necessary and reasonable traveling expenses and such other expenses, including subsistence actually incurred while traveling outside the city of Boston in the performance of their duties.
For purposes of this section, overnight accommodations for travel within a 50 mile radius of Boston shall not be considered reasonable.
Section 5A. Subject to appropriation, the chairman shall appoint five attorneys and may appoint such other employees, including clerks, and make such other expenditures including computer training, as he deems necessary in order to execute efficiently the functions vested in said board.
Any clerk or assistant clerk employed by the board as of July 1, 1996 shall hold office during good behavior, subject, however, to retirement under the provisions of any applicable general or special law relative to retirement systems. A clerk or assistant clerk may be removed by the chairman, upon notice and hearing, for neglect of duty, inability to perform duties, or malfeasance in office, but for no other cause. All clerks or assistant clerks hired after July 1, 1996 shall be deemed employees at will.
All expenditures of the board shall be allowed and paid out of moneys appropriated for the purpose of the board, upon presentation of itemized vouchers therefor, signed by the chairman or a person designated by the board for the purpose.
Section 6. The board shall have jurisdiction to decide appeals under the provisions of: section 42E of chapter 40; sections 2 and 14 of chapter 58; clauses Seventeenth and Twenty-second of section 5 of chapter 59; sections 7, 7A, 39, 64, 65, 65B, 73 and 81 of said chapter 59; section 2 of chapter 60A; section 14 of chapter 61B; sections 39, 67 and 68 of chapter 62C; section 2 of chapter 63; section 26 of chapter 65; section 4 of chapter 65A; any other provision of law wherein such jurisdiction is or may be expressly conferred.
Except as otherwise provided by law, no appeal to the board shall stay the collection of any tax or excise.
Whenever a board of assessors, before whom an application in writing for the abatement of a tax is pending, fails to act upon said 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 taxpayer shall have the right, at any time within three months thereafter, to take any appeal from such denial to which he may be entitled by law, in the same manner as though the board of assessors had in fact refused to grant the abatement applied for. After the expiration of said three months from the date of filing such application, the board of assessors shall have no further authority to act upon said application; provided, however, that during the period allowed for the taking of an appeal, including instances where the application for abatement has been denied, the assessors may, by agreement with the applicant, abate the tax in whole or in part in final settlement of said application, and shall also have the authority granted to them by section 7 to abate, in whole or in part, any tax as to which an appeal has been seasonably taken.
Whenever the commissioner of revenue, before whom an application in writing for the abatement of tax is or shall be pending, fails to act upon said application prior to the expiration of six months from the date of filing of the same, it shall then be deemed to be denied unless the applicant shall have filed with the commissioner, prior to such expiration, his written consent to the failure of the commissioner to act on said application within said six months' period. Said consent may be withdrawn by the applicant at any time, in which event said application, unless previously acted on by the commissioner, shall be deemed to be denied at the expiration of said six months' period or on the date of such withdrawal, whichever is later. The applicant, at any time within six months from the date on which any such application shall be so deemed to be denied by the commissioner, shall have the right to take any appeal from such denial to which he may be entitled by law in the same manner as though the commissioner had in fact refused to grant the abatement applied for. The commissioner shall have authority to act on any application after the date of any denial if the applicant has not seasonably taken an appeal from such denial. During the period allowed for the taking of an appeal, the commissioner may, by agreement with the applicant, abate the tax in whole or in part in final settlement of said application subject to the provisions of section 37A or 37C of chapter 62C.
Section 7. Any party taking an appeal to the 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. No petition shall relate to an assessment on more than one parcel of real estate, except where the board shall specifically permit otherwise. Upon such appeal, the petition shall set forth specifically the facts upon which the party taking an appeal, hereinafter called the appellant, relies, together with a statement of the contentions of law which the appellant desires to raise. The appellant shall state upon the petition the address at which service of any pleading, motion, order, notice or process in connection with the appeal can be made upon him. Within such time as the board by its rules may prescribe, the appellee shall file with the board an answer denying or admitting each and every allegation of fact contained in the petition; except that, in an appeal under section 64 or 65 of chapter 59, if the appellee desires to raise no issue other than the question whether there has been an overvaluation or improper classification of the property on which the tax appealed from was assessed, no answer need be filed. If no answer is filed in such a case, the allegation of overvaluation or improper classification of such property shall be held to be denied and all other material facts alleged in the petition admitted. If an answer is filed, a copy shall be served upon the appellant, in the manner provided in section 9. The party taking the appeal shall at the time of filing the petition pay to the clerk an entry fee for each appeal from a decision of the commissioner, or, in the case of an appeal from a decision of a board of assessors, an entry fee where the assessed fair cash valuation of the real property, or personal property, or both, the tax on which is sought to be abated, is $50,000 or less; or an entry fee where such assessed fair cash valuation is in excess of $50,000. The commissioner of administration shall annually determine the amounts of such entry fees under the provisions of section 3B of chapter 7. Except as provided in section 12C of this chapter, the board shall not consider, unless equity and good conscience so require, any issue of fact or contention of law not specifically set out in the petition upon appeal or raised in the answer. At any time before the decision upon the appeal by the board or by the appeals court under section 13, the appellee may abate the tax appealed from, in whole or in part, or change its determination subject to the provisions of section 37A or 37C of chapter 62C.
In the case of an appeal relating to property classified as either residential greater than eight units, or commercial or industrial, and which is assessed for more than $200,000 in the previous fiscal year, upon the written request of the appellee, the appellant shall file with the board an income and expense statement for the most recent year preceding the valuation date at issue in the appeal, completed under oath, within 40 days of such request.
Section 7A. The board shall establish by rule an alternative procedure, hereinafter referred to as the informal procedure, for the determination of petitions for abatement of any tax upon real estate or tangible personal property, where such procedure is elected by both parties, except as hereinafter provided. Such procedure, to the extent that the board may consider practicable, shall eliminate formal rules of pleading, practice and evidence, and, except for the entry fee herein provided, may eliminate any or all fees and costs, or may provide that costs shall be in the discretion of the board.
An appellant desiring to be heard under the informal procedure shall pay to the clerk the entry fee provided in section 7, except as otherwise herein provided, and shall file: a written waiver of the right to appeal to the appeals court or 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; an election of the informal procedure; a written statement of the facts in the case; and the amount claimed in abatement, together with such additional information as the clerk may require, hereinafter collectively referred to as the pleadings. The minimum entry fee shall be determined annually by the commissioner of administration under the provision of section 3B of chapter 7 if the assessed fair cash valuation of the property on which the tax appealed from was assessed does not exceed $20,000 and such property is occupied in whole or in part by the appellant as his dwelling, contains no more than three units designed for dwelling purposes and is in no part used for any other purposes, or if the assessed valuation of the property on which the tax appealed from was assessed does not exceed $5,000 and such property is within the class of tangible personal property described in clause Twentieth of section 5 of chapter 59.
The pleadings may be made on forms to be supplied by the board and, if the appellant so requests and the assessed fair cash valuation of the property concerned does not exceed $20,000, shall be made out for the appellant by the clerk or an employee of the board designated by the board. The clerk shall then serve a copy of such pleadings upon the appellee. No further pleadings shall be required under this procedure if the appellee intends to offer no other defense than that the property was not overvalued or that the property was not improperly classified; otherwise, it shall file with the board within 30 days of the service of such pleadings an answer similar to that required under the procedure provided by section 7, hereinafter referred to as the formal procedure.
If the assessed fair cash valuation of the property concerned exceeds $20,000, the appellee, within 30 days of the date of service of such pleadings, may elect to have the appeal heard under the formal procedure by so notifying the clerk in writing and by paying him a transfer fee to be determined annually by the commissioner of administration under the provision of section 3B of chapter 7, in which case the said statement shall be considered to be a petition and such service to be service of the petition and the waiver of the right of appeal by the appellant shall be void. If the appellee does not so transfer the case, the informal procedure shall be deemed to have been accepted and all right of appeal waived by the appellee, except upon questions of law raised by the pleadings or by an agreed statement of facts or shown by the report of the board.
No statement under the informal procedure shall relate to an assessment on more than one parcel of real estate, except where the board shall specifically permit otherwise. The chairman shall provide for the speedy hearing of all appeals to be heard under the informal procedure. The chairman shall make every effort to reduce the expense of hearing cases filed under the informal procedure by directing whenever possible that petitions for abatement of taxes assessed upon real estate situated in the same general locality of the same town be heard together, irrespective of the identity of the appellants.
Section 7B. (a) The board shall establish by rule a further alternative procedure, hereinafter referred to as the small claims procedure, for the determination of petitions for abatement of any tax or excise to which the provisions of chapter 62C apply, as they are or may be specified in section 2 of said chapter 62C. The appellant may elect the small-claims procedure in any case in which the amount of tax placed in dispute by the petition, does not exceed (1) $5,000 for any taxable year, in the case of a tax imposed by taxable year; (2) $5,000 for any calendar year, in the case of a tax imposed by calendar year; (3) $5,000 for any calendar year, in the case of a tax imposed by chapters 64A to 64J, inclusive, and section 21 of chapter 138; (4) $5,000 in the case of a tax imposed by chapter 65C; or (5) $5,000 for any taxable event or transaction in the case of any other tax. For purposes of this section, the amount of any tax or excise placed in dispute does not include any interest, penalty, or addition to tax imposed by chapter 62C or any statute referred to in section 2 of said chapter. If, however, only the assessment or the amount of interest and/or penalties is in dispute, said interest and penalties shall not exceed $5,000.
(b) Proceedings under the small-claims procedure shall be conducted as informally as possible in accordance with such rules of evidence, practice, and procedure as the board may prescribe. To the extent that the board may consider practicable, the small-claims procedure shall eliminate formal rules of pleading, practice, and evidence, and except for the entry fee herein provided, may eliminate any or all fees and costs, or may provide that costs shall be in the discretion of the board. The chairman shall provide for the speedy hearing of all appeals to be heard under the small-claims procedure.
(c) An appellant desiring to be heard under the small-claims procedure shall pay to the clerk a minimum entry fee as determined annually by the commissioner of administration under the provision of section 3B of chapter 7 and shall file an election of the small-claims procedure and a written statement of the facts of the case and of the amount claimed in abatement, together with such additional information as the clerk may require. The statement may be made on forms to be supplied by the board. The clerk shall then serve a copy of the statement upon the commissioner of revenue. The appellant shall also file a written waiver of the right to appeal to any court. Within 30 days of the service of the statement or at such other time as the board may order, the commissioner of revenue shall file with the board an answer similar to that required under the formal procedure provided by section 7.
(d) Any case in which the appellant has filed an appeal under the small-claims procedure, as provided in subsection (c) above, shall be designated and docketed as a small-claims case. With the concurrence of the board, the proceedings therein shall be conducted as a small-claims case in accordance with this section.
(e) At any time before the commencement of the hearing, the board on its own motion or on the motion of a party to the appeal may order that the small-claims designation be removed and that the proceedings be transferred to the formal procedure under section 7. In addition, at any time before a decision is entered, the board shall discontinue further proceedings under this section if it finds (1) that there are reasonable grounds for believing that the amount of tax placed in dispute exceeds the applicable jurisdictional amount as described in subsection (a), and (2) that the amount of the excess is large enough to justify granting the request. The commissioner, by motion, may also request a matter be removed from the small claims procedure if: (1) there is a recurring issue of law; and (2) the aggregate tax at issue, taking into account similarly situated taxpayers, is over $200,000. Upon any such removal or discontinuance, proceedings in the case shall be transferred to the formal docket and conducted under the formal procedure provided by section 7, in which case the statement required by subsection (c) shall be considered to be a petition, its service to be service of a petition, and the waiver of the right of appeal to be void. If the small-claims designation is not removed and proceedings under this section are not discontinued, the small-claims procedure shall be deemed to have been accepted and all right of appeal waived by both parties.
(f) The board shall make a decision in each case heard by it under the small-claims procedure, giving a brief written summary of the reasons therefor. No decision shall grant an abatement of tax exceeding the amount of tax placed in dispute within the limits prescribed in subsection (a). Where the amount of tax which the commissioner has refused to abate exceeds the limits imposed by subsection (a), the appellant may nevertheless elect the small-claims procedure; provided, however, that such election shall, unless the small-claims procedure is discontinued pursuant to subsection (e), foreclose all rights to an abatement of any amount of tax in excess of such limits and all interest, penalties, or additions to tax imposed by chapter 62C related to such excess.
(g) A decision entered in any case in which the proceedings are conducted under this section shall not be reviewed in any court and shall not be treated as precedent for any other case.
Section 8. A hearing shall be granted if any party to an appeal so requests, and upon motion of any party to an appeal, or by direction of the board, any appeal may be set down for a hearing. Hearings may be held before less than a majority of the members of the board and the chairman may assign members to hold hearings. Hearings before the board, or any member thereof, shall be open to the public and such hearings and all proceedings shall be conducted in accordance with such rules of practice and procedure as the board may make and promulgate; provided, however, that such rules and amendments thereto shall comply with the filing provisions of section 5 of chapter 30A and such rules and amendments shall not take effect until so filed. The chairman may direct that two or more petitions for abatement of the taxes assessed upon real estate situated in the same general locality of the same town be heard together, irrespective of the identity of the appellants.
Section 8A. Before the hearing of a petition for the abatement of a tax upon real estate, machinery or other tangible property, the appellant shall permit the appellee personally or by attorneys, experts or other agents, to enter upon such real estate or upon any premises where such personal property is situated and examine and inspect such real estate or personal property, including any property which the appellant claims is exempt from taxation. In case of doubt or uncertainty as to the identity of the property, the appellant shall point out to the appellee the property to which the appeal relates. In the event the appellant refuses to permit the appellee to inspect said property, the board may dismiss the appeal. Sections 61 to 70, inclusive, of chapter 231 shall apply to all appeals before the board except those conducted under the informal procedure provided by section 7A or under the small claims procedure provided by section 7B of this chapter. At least 30 days prior to the hearing of a petition for the abatement of a tax, upon a motion filed by either party and granted by the board, or by direction of the board, the appellant and appellee shall exchange appraisal reports concerning the property.
In any pending appeal where jurisdiction is established, the board, with the consent of all parties, may in its discretion employ alternative dispute resolution techniques including, without limitation, mediation and arbitration. Said alternative dispute resolution techniques shall be conducted upon such terms and conditions as are established by the parties with the approval of the board.
Section 9. The mailing by first class mail, postage prepaid, to the address of any appellant as given on the petition upon appeal, or to the address of his attorney or agent of record, if any, or to the usual place of business of the commissioner or of the board of assessors, or its agent or attorney of record, shall be deemed sufficient service of any pleading, motion, order, notice or process so served in respect to proceedings before the board. The board may order that further notice or notice by other means be given in any case.
Section 10. At the request of any party made before any evidence is offered, or by direction of the board, the board shall order that all proceedings in a pending appeal be officially recorded. The board shall employ transcription methods including, without limitation, electronic transcription equipment, for the purpose of recording or reporting proceedings before the board. The board may contract for the reporting of such proceedings at the expense of the commonwealth in the first instance, but shall collect the cost thereof from the persons requesting that the proceedings be recorded. In such contract the board may provide that one or more copies of the transcript be supplied to the board without cost to the commonwealth, and may fix the terms and conditions upon which transcripts will be supplied to other persons and agencies by the official recorder. No proceedings shall be recorded or transcribed officially until an amount equal to the cost thereof, as estimated by the clerk, shall have been deposited with him at such times and in such manner as may be provided by the rules of the board. Any excess deposit over the actual cost shall be returned to the depositor by the clerk. If no party requests that the proceedings be reported, all parties shall be deemed to have waived all rights of appeal to appeals court or the supreme judicial court upon questions as to the admission or exclusion of evidence, or as to whether a finding was warranted by the evidence. The right of appeal upon questions of law raised by the pleadings or by an agreed statement of facts or shown by the report of the board shall not be deemed to be waived. For its own information only, the board may, subject to appropriation, have stenographic notes of hearings taken and may have transcripts thereof prepared in proceedings which are not officially reported at the request of a party.
Section 11. Any member of the board, or any employee of the board designated in writing for the purpose by the chairman, may administer oaths, and any member of the board may summon and examine witnesses and require, by subpoena signed by the member, the production of all returns, books, papers, documents, correspondence and other evidence, pertinent to the matter under inquiry, at any designated place of hearing, and may require the taking of a deposition before any person competent to administer oaths, either within or without the commonwealth. In the case of a deposition, the testimony shall be reduced to writing by the person taking the deposition or under his direction and shall then be subscribed by the deponent.
Either party may summon witnesses or may require the production of papers in the same manner in which witnesses may be summoned and papers may be required to be produced for the purpose of trials in the superior courts of the commonwealth. Any witness summoned or whose deposition is taken shall receive the same fees and mileage as witnesses in said courts.
Section 12. Witness fees and expenses of service of process may be taxed as costs against the unsuccessful party to the appeal, in the discretion of the board. In the event that the commonwealth, or any official thereof, is the unsuccessful party to an appeal, the costs shall be paid from the state treasury upon certificate of a member of the board in such form as the board may prescribe by regulation. In the event that a subdivision of the commonwealth, or any official thereof, is the unsuccessful party to an appeal, the costs shall be paid from the treasury of such subdivision by the treasurer thereof upon the certificate of a member of the board in such form as the board may prescribe by regulation. In the event that costs are taxed against an unsuccessful taxpayer, a member of the board shall certify the amount of the same and the costs may be recovered in an action of contract by the state treasurer in the case of a tax assessed by the commissioner, or by the treasurer of the subdivision of the commonwealth in the case of a tax assessed by the subdivision.
Section 12A. If the owner of a parcel of real estate files an appeal of the assessed value of said parcel with the board for either of the next two fiscal years after a fiscal year for which the board has determined the fair cash value of said parcel and if the assessed value is greater than the fair cash value as determined by the board, the burden shall be upon the appellee to prove that the assessed value was warranted and upon failure of the appellee to do so, the board may, in its discretion, tax as costs against the appellee, in addition to witness fees and expenses of service of process, the whole or any part of the reasonable expense of the taxpayer incurred in the preparation, entry and trial of his appeal. Should the board find that the assessed value was warranted, then it may tax such costs of the appellee against the appellant. Such costs shall be certified and paid as provided in section 12.
Section 12B. At any hearing relative to the assessed fair cash valuation or classification of property, evidence as to the fair cash valuation or classification of property at which assessors have assessed other property of a comparable nature or class shall be admissible.
Section 12C. In any appeal relative to the assessed valuation of property, the reports of the ratios which assessments in the city or town bear to the fair cash value of each class of property therein and the ratio which the total assessed value bears to the total fair cash value therein as determined by the commissioner's report made pursuant to sections 10 and 10C of chapter 58 shall be admitted into evidence by the appellate tax board on its own motion and shall be prima facie evidence of the assessment practices of the city or town and the ratios at which property is assessed for the year for which said determination is reported by the commissioner and for each following year until a new determination is reported by said commissioner under said section 10C.
The board may give an abatement, provided the evidence so warrants, on the basis of a disproportionate assessment even though that issue has not been raised by the pleadings.
Section 12D. Notwithstanding the provisions of any general or special law to the contrary, in any appeal under the provisions of sections 64 or 65 of chapter 59 from the refusal of the assessors to abate a tax or reclassify any real or personal property by an electric company or gas company, both as defined in section 1 of chapter 164, upon motion of any party after an appeal has been filed but before decision is rendered concerning real or personal property of an electric or gas company for any fiscal year certified or following certification for classification by the commissioner under the provisions of section 56 of chapter 40 or any determination of the commissioner made pursuant to section 1A of chapter 58, the board shall properly classify all the taxable property at issue as either real or personal and determine the fair cash value of such property, and the tax that should have been paid, notwithstanding the assessors' original classification of such property or the amount or form of the tax bill received and paid; provided, however, that upon a determination that any property should be reclassified, the taxpayer shall be allowed to file an appeal late concerning the valuation of such property, if an appeal has not been previously filed, within 30 days of such determination and order of the board.
In any determination made under this section, the board shall make subsidiary findings of the proper classification of all taxable property at issue, as either real or personal, the fair cash value and the total taxes that should have been paid for each parcel or item of such property, reduced by abatements, if any, for each fiscal year. Upon such determination, the board shall further find the taxes that were paid or owed for such property at issue as it was originally assessed and taxed, and shall then allocate and credit such taxes as part or all of the taxes that should have been paid for such property as properly classified by it, and such allocation shall be binding on the taxpayer and the assessor and shall be deemed to be the original tax assessed and owed, subject only to any appeal taken pursuant to section 13; provided, however, that if the total amount of taxes that should have been paid under the board's de novo determination under this section is equal to or greater than the amounts actually paid or owed, as determined under this section, the appellant shall not be entitled to an abatement, notwithstanding the local assessor's original tax classification of the taxable property or the form of the original bill received and paid. Upon a determination under this section, the existing official records of the city or town shall be amended and corrected, and assessments and tax bills shall be deemed to have been issued in conformance with the board's determination.
Section 13. The board, or a single member of the board acting pursuant to the authority outlined in section 1A shall make a decision in each appeal heard by it within three months from the close of the record including submission of briefs and may make findings of fact and report thereon in writing. In any appeal in which the hearing is officially recorded pursuant to section 10, or in any appeal from the commissioner of revenue other than cases heard under the small claims procedure pursuant to section 7B, the member may take an additional three months to issue a decision. In every decision granting an abatement without findings of fact and report which relates to a tax on land with one or more buildings thereon, the board shall, if so requested by the appellee in writing at the commencement of the hearing, state separately the value of the land and of each building.
Except in cases heard under the informal procedure authorized by section 7A, or under the small-claims procedure authorized under 7B, the board shall make such findings and report thereon if so requested by either party within ten days of a decision without findings of fact and shall issue said findings within three months of the request, provided, however, the board, in its discretion, may extend the time for issuing said findings and report for an additional period not to exceed three months, upon written notice to both parties setting forth the reason for the extension. In extraordinary circumstances or with consent of all parties to the proceeding, the board may have whatever additional time is necessary for issuance of such findings of fact and report. Such report may, in the discretion of the board, contain an opinion in writing, in addition to the findings of fact and decision. If no party requests such findings and report, all parties shall be deemed to have waived all rights of appeal to the appeals court upon questions as to the admission or exclusion of evidence, or as to whether a finding was warranted by the evidence. All reports, findings and opinions of the board and all evidence received by the board, including a transcript of any official report of the proceedings, all pleadings, briefs and other documents filed by the parties, shall be open to the inspection of the public; except that the originals of books, documents, records, models, diagrams and other exhibits introduced in evidence before the board may be withdrawn from the custody of the board in such manner and upon such terms as the board may in its discretion prescribe. The decision of the board shall be final as to findings of fact. Failure to comply with the time limits, as outlined above, shall not affect the validity of the board's decision.
From any final decision of the board except with respect to decisions of the board under sections 25 and 26 of chapter 65, an appeal as to matters of law may be taken to the appeals court by either party to the proceedings before the board so long as that party has not waived such right of appeal. A claim of appeal shall be filed with the clerk of the board in accordance with the Massachusetts Rules of Appellate Procedure which rules shall govern such appeal. The court shall not consider any issue of law which does not appear to have been raised in the proceedings before the board.
If the order grants an abatement of a tax assessed by the commissioner and the tax has been paid, the amount abated with interest computed in accordance with section 40 of chapter 62C, and if costs are ordered against the commissioner, the amount thereof, shall be paid to the taxpayer by the state treasurer. If the order grants an abatement of a tax assessed by the board of assessors of a town and the tax has been paid, the amount abated with interest at the rate of 8 per cent per annum from the time when the tax was paid, and if costs are ordered against a board of assessors, the amount thereof, shall be paid to the taxpayer by the town treasurer, and, if unpaid, execution therefor may issue against the town as in actions at law. If costs are ordered against a taxpayer execution shall issue therefor. The appeal to the appeals court under this section shall be the exclusive method of reviewing any action of the board, except action under sections 25 and 26 of chapter 65. For want of prosecution of an appeal in accordance with the provisions of this section the board, or, if the appeal has been entered in the appeals court, a justice of that court, may dismiss the appeal. Upon dismissal of an appeal, the decision of the board shall thereupon have full force and effect.
Section 14. In cases where the board finds that a taxpayer is being assessed disproportionately with respect to other properties within the same city or town, the board shall compute the measure of damages in the following manner:
(1) by computing an equalized tax rate by dividing the total taxes as assessed for that city or town for the year for which the finding was made by the fair cash value of the city or town, which shall in no event be higher than the equalized value as finally reported to the general court pursuant to section 10C of chapter 58 for that city or town in the year next preceding the year for which the finding was made.
(2) by applying the rate as computed in accordance with subsection 1 to the fair cash value of the property and thereby determine the taxes which should have been paid.
(3) by subtracting the amount of taxes which should have been paid from those actually paid or assessed.
In such cases within a city or town that has been certified for classification by the commissioner under the provisions of section 56 of chapter 40 and has implemented such classification system the measure of damages shall be computed on the basis of the tax rate of the class in which the property has been assessed or should have been assessed, as the case may be.
SECTION 3. Section 64 of chapter 59 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out, in line 14, the words "two thousand dollars" and inserting in place thereof the following figure:- $3,000.
SECTION 4. Said section 64 of said chapter 59, as so appearing, is hereby further amended by inserting after the word "appeal", in line 35, the following words:- including instances where the application for abatement has been denied,.
SECTION 5. Subparagraph (4) of paragraph (a) of subsection B of section 3 of chapter 62 of the General Laws, as so appearing, is hereby amended by striking out, in line 60, the word "provided" and inserting in place thereof the following words:- to the extent.
SECTION 6. Section 13 of chapter 62B of the General Laws, as so appearing, is hereby amended by striking out, in line 8, the word "less" and inserting in place thereof following words:- reduced by the total amount of the credits allowed under section 6 of chapter 62 to which the taxpayer estimates he will be entitled and further reduced by.
SECTION 7. Subsection (a) of section 14 of said chapter 62B, as so appearing, is hereby amended by inserting after the word "rate", in line 4, the following words:- but without daily compounding and on a per annum basis.
SECTION 8. Subsection (d) of said section 14 of said chapter 62B, as so appearing, is hereby amended by striking out clause (i), and inserting in place thereof the following clause:-
(i) the tax shown on the return for the taxable year less the amount of the credits allowed by section 9 of this chapter and section 6 of chapter 62 is less than $200 or, if no return is filed, the amount of tax less the amount of the credits allowed by section 9 of this chapter and section 6 of chapter 62 is less than $200.
SECTION 9. Section 3 of chapter 62C of the General Laws, as so appearing, is hereby amended by adding the following three paragraphs:-
Within four months of a final court decision interpreting Massachusetts tax law, the commissioner shall issue a technical information release setting forth the department of revenue's position relative to said court decision. The time for issuing a final technical information release may be extended where the commissioner has submitted a draft release for public comment or has determined regulatory action is required. A technical information release shall not be required where the decision relates solely to jurisdiction, confirms a long-standing policy of the department of revenue or affects the interest of the immediate taxpayer only.
The commissioner shall issue letter rulings within 120 days of the receipt of a written request by a taxpayer. If the commissioner determines that additional time is needed to respond to the request for a letter ruling, he shall notify the taxpayer in writing and specify a date on which the ruling will be issued. Any taxpayer requesting a letter ruling shall provide the commissioner with all information necessary to make such ruling.
The commissioner shall provide public notice to taxpayers of any changes in the tax law, including but not limited to, changes in department of revenue policy, regulatory changes, recent court decisions and the department of revenue's policy with regard to recent court decisions by making all regulations, technical information releases, letter rulings, directives, guides and other publications available to the public at the department and at other public facilities at the discretion of the commissioner. Public notice may include publication on the internet. Any regulation made available to the public shall be accompanied by a fact sheet or other summary explaining the provisions of the regulation.
SECTION 10. Subsection (b) of section 26 of said chapter 62C, as so appearing, is hereby amended by inserting after the word "assessed", in line 13, the following words:- ; provided, however, that said three year period for making an assessment shall be suspended during the period of time that the taxpayer has a bankruptcy case pending under the appropriate chapters of Title 11 of the United States Code.
SECTION 11. Said section 26 of said chapter 62C, as so appearing, is hereby further amended by adding the following subsection:-
(j)(1) The commissioner shall not make any assessment under this chapter if that assessment is based on a change in policy unless such change in policy first is announced to taxpayers pursuant to the promulgation of a validly adopted regulation or the issuance of a technical information release, directive, administrative procedure or other similar public statement of equivalent formality that explains the change in policy. Further, no assessment based on a change in policy shall be made with respect to taxable years or periods that began prior to the issuance of a public written statement as provided in this paragraph.
(2) For purposes of this section, an assessment is based on a change in policy if it is contrary to a rule of law or the interpretation of a rule of law set forth in a regulation, technical information release, directive, administrative procedure, letter ruling, tax form, including instructions, or any other written guidance issued by the commissioner; provided, however, that the facts and circumstances on which the letter ruling was based are not materially different. A change in policy shall not occur when the commissioner merely applies a previously announced or established rule of law to the facts and circumstances of a particular taxpayer or transaction.
SECTION 12. Section 30 of said chapter 62C, as so appearing, is hereby amended by adding the following paragraph:-
For purposes of this section, a final determination of a change by the federal government may be initiated by the filing of an amended federal return by the taxpayer.
SECTION 13. Section 37A of said chapter 62C, as so appearing, is hereby amended by striking out, in lines 1 and 2, the words "Notwithstanding any other provision of law, prior to a court judgment or decision by the appellate tax board, the" and inserting in place thereof the following word:- The.
SECTION 14. Said section 37A of said chapter 62C, as so appearing, is hereby further amended by striking out subparagraph (a) and inserting in place thereof the following subparagraph:-
(a) The commissioner finds that there is serious doubt as to the collectibility of the tax due.
SECTION 15. Said section 37A of said chapter 62C, as so appearing, is hereby further amended by striking out, in line 37, the word "case", and inserting in place thereof the following words:- matter which is the subject of such agreement,.
SECTION 16. Said chapter 62C is hereby amended by inserting after section 37B the following section:-
Section 37C. (a) The commissioner may accept a lesser amount than the proposed or assessed tax liability in full and final settlement thereof; provided, however, that the following conditions are met:
(1) The commissioner finds that the settlement is in the best interests of the commonwealth, taking into account potential hazards of litigation and the likelihood of a finding of liability against the taxpayer; and
(2) the commissioner and the taxpayer agree in writing to the settlement.
(b) After the settlement agreement is signed, neither the taxpayer nor the commissioner shall be permitted to reopen the matter or matters which are the subject of an agreement except by reason of (1) fraud; (2) misrepresentation of a material fact; or (3) mutual mistake of a material fact sufficient to cause a contract to be reformed or set aside.
(c) The commissioner shall promulgate rules and regulations to carry out the provisions of this section, which rules and regulations shall include procedures for determining and approving of all settlements; provided, however, that all settlements under this section shall be approved by the commissioner.
(d) Any settlement under this section which is entered into after the commissioner has denied or is deemed to have denied an application for abatement filed pursuant to section 37 and which proposes to abate $200,000 or more of the tax, not including interest and penalties, shall be submitted to the attorney general for review. Any such settlement proposal shall take effect 21 days after its receipt by the attorney general, unless the attorney general objects in writing to the settlement. In the event the attorney general objects to the settlement proposal, such settlement shall not take effect until the objection is resolved by the commissioner and the attorney general.
(e) Where, under the provisions of this section, an amount less than the amount of the assessed liability is accepted in full and final settlement of said liability, the commissioner shall abate the excess of such liability over the amount accepted in settlement.
(f) The commissioner of revenue shall report to the attorney general each settlement which is described in this section and which is less than $250,000. Said report shall include the identity of the taxpayer, the type and amount of the tax and such other information as is necessary to convey the terms of and reasons for each such settlement. Said report is to be prepared on a quarterly basis and submitted to the attorney general no later than 45 days after the end of each calendar quarter.
SECTION 17. Section 40 of said chapter 62C, as so appearing, is hereby amended by striking out, in line 20, the word "ninety" and inserting in place thereof the following figure:- 45.
SECTION 18. Section 54 of said chapter 62C, as so appearing, is hereby amended by adding the following subsection:-
(e) The commissioner may, in his discretion, reimburse a taxpayer for any fee or similar amount charged to the taxpayer by a bank or financial institution where such fee or charge proximately resulted from the commissioner's improper or erroneous service of a notice of lien or levy on such bank or financial institution.
SECTION 19. Section 65 of said chapter 62C, as so appearing, is hereby amended by adding the following paragraph:-
For bankruptcy cases under relevant chapters of Title 11 of the United States Code, the running of the period of limitations in this section on collections shall be suspended for the period during which the commissioner is prohibited by reason of such case from collecting the tax, and for the period during which a plan for payment of the tax is in effect, and for six months thereafter.
SECTION 20. Section 33 of chapter 64H of the General Laws, as so appearing, is hereby amended by striking out the second sentence and inserting in place thereof the following:- Such claim for reimbursement, covering the amount of excise paid on accounts determined to be worthless in the vendor's prior fiscal year, shall be filed on or before the due date, including extensions, of the federal income tax return (or annual federal filing in the case of an exempt organization) for such prior fiscal year.
For the purposes of this section, the word "claimant" shall mean an individual who brings a claim against an insured under a liability insurance policy or the liability coverage portion of a multiperil policy, or a beneficiary under a life insurance policy. The governor shall appoint a committee consisting of the commissioner of revenue or his designee, the commissioner of insurance or his designee and a representative of the property insurance industry. Said committee shall present a report to the legislature not later than December 31, 1998 on the projected amount of child support collections that would result from adding first party claims under non-commercial policies to the system established by this section.
SECTION 22. The time standards set forth in section 13 of chapter 58A of the General Laws shall not apply to cases where there has been a close of the record as of the effective date of this act; provided, however, that every effort shall be made to apply such time standards to matters pending before the board on the effective date of this act.
SECTION 23. Sections 1 to 20, inclusive, shall take effect on January 1, 1999.
SECTION 24. Item 2440-8961 of section 2 of chapter 15 of the acts of 1996 is hereby amended by striking out the words "and provided further, that no such improvements or facilities shall be constructed without the prior approval of the governing body of the city or town in which said improvement or facility will be located" and inserting in place thereof the following words:- and provided further, that no such improvements or facilities, whether in whole or in part or whether in stages according to a schedule or plan, and no matter the source of such funds, shall be constructed without the prior approval, at the time of such improvement, whether whole or in part or whether in stages according to a schedule or plan, of the governing body of the city or town in which said improvement or facility will be located; and provided further, that the metropolitan district commission shall not apply for any federal funds or use any state or federal funds for such improvements or facilities, as described in the Neponset river master plan, without the prior approval of the governing body of the city or town in which said improvement or facility will be located.