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17-P-1020                                           Appeals Court

 VEOLIA ENERGY BOSTON, INC.    vs.   BOARD OF ASSESSORS OF BOSTON.


                           No. 17-P-1020.

        Suffolk.       September 6, 2018. - March 8, 2019.

                Present:   Vuono, Agnes, & Henry, JJ.


Taxation, Personal property tax: abatement, Appellate Tax
     Board: jurisdiction. Practice, Civil, Abatement,
     Dismissal. Notice, Timeliness.


    Appeal from a decision of the Appellate Tax Board.


     Kathleen S. Gregor (Erin R. Macgowan also present) for the
taxpayer.
     Anthony M. Ambriano for board of assessors of Boston.


    VUONO, J.    The plaintiff, Veolia Energy Boston, Inc.

(Veolia), appeals from an adverse decision of the Appellate Tax

Board (tax board).   The sole issue is whether the tax board had

jurisdiction over Veolia's appeal from the denial of its

application for abatement of personal property tax assessed for

fiscal year 2015.    We conclude that because Veolia failed to

timely file a valid abatement application with the board of
                                                                   2


assessors of Boston (assessors), as required by G. L. c. 59,

§ 59, the tax board lacked jurisdiction and properly dismissed

Veolia's appeal.

     Background.1   Veolia operates a steam manufacturing and

distribution system that provides thermal energy to customers in

the city of Boston (city).2   The system consists of boilers, a

network of pipes, and appurtenant equipment located throughout

the city.   The dispute between the parties began in 2014 when,

for the first time, Veolia was assessed a personal property tax

(approximately $2 million) on its machinery and equipment.

Veolia timely filed a valid application for abatement with the

assessors on February 3, 2014, pursuant to G. L. c. 59, § 59

(§ 59 or statute).3   Veolia argued that it was exempt from paying




     1 The procedural history and facts are taken from the tax
board's findings of fact and report promulgated on May 17, 2017.
We include additional undisputed facts from the tax board's
findings of fact and report issued in connection with Veolia's
abatement application for fiscal year 2014 solely for the
purpose of providing context.

     2 The system converts chemical energy from natural gas and
fuel oil into high-pressure steam and then distributes the steam
to approximately 250 commercial, healthcare, government,
institutional, and hospitality customers who use the steam for
various purposes, including power generation, sterilization,
heating, and cooling. Veolia operates a similar network in
Cambridge.

     3 General Laws c. 59, § 59, provides in relevant part that a
person aggrieved by the taxes assessed upon him "may . . . apply
in writing to the assessors, on a form approved by the
commissioner, for an abatement thereof, and if they find him
                                                                  3


personal property tax on all manufacturing machinery, including

all components of its systems, because it was classified as a

manufacturing corporation by the Commissioner of Revenue

(commissioner).4   The assessors denied the application for

abatement, and Veolia appealed to the tax board.   Ultimately,

the tax board concluded that the property at issue was exempt

from taxation, as Veolia had claimed.   Consequently, the tax

board reversed the assessors' decision and granted a full

abatement of the tax Veolia paid in fiscal year 2014.5

     Meanwhile, Veolia again was assessed a tax for fiscal year

2015, approximately $2.2 million, on the same machinery and




taxed at more than his just proportion . . ., they shall make a
reasonable abatement."

     4 General Laws c. 59, § 5, Sixteenth (3), exempts from
taxation the following: "In the case of . . . a manufacturing
corporation, . . . all property owned by the corporation . . .
other than real estate, poles and underground conduits, wires
and pipes."

     5 The tax board issued its decision concerning Veolia's
appeal from the denial of its request for abatement in fiscal
year 2014 on November 16, 2016. The assessors then requested
findings of fact and a report under G. L. c. 58A, § 13, and 831
Code Mass. Regs. § 1.32 (2007), which the tax board subsequently
issued on June 5, 2018. The assessors have filed a timely
notice of appeal from that decision. Because the case is under
appeal, the decision of the tax board granting a tax abatement
for fiscal year 2014 is not final. See Verizon New England Inc.
v. Assessors of Newton, 81 Mass. App. Ct. 457, 461 (2012),
quoting State Tax Comm'n v. Assessors of Haverhill, 331 Mass.
306, 309 (1954) ("until the time for appeal from a [tax] board
decision expired or the court decided any pending appeal, 'there
has been no final determination by the [tax] board'").
                                                                     4


equipment.    Veolia timely paid the tax due in quarterly

installments on July 25, 2014, October 14, 2014, January 21,

2015, and April 20, 2015.    Each payment was accompanied by a

letter addressed to the "City of Boston Collector of Taxes" (tax

collector).   The letters are typed on Veolia's stationery and

signed by Steven Weafer, Veolia's vice-president of finance.

All four letters include the following sentence:

    "Please note that Veolia Energy Boston, Inc. has filed a
    Petition under Formal Procedure with the Appellate Tax
    Board [for fiscal year 2014], the outcome of which may
    affect the tax assessment for this period and others."
    Pursuant to § 59, the deadline for filing an abatement

application for fiscal year 2015 was February 6, 2015.      On May

14, 2015, Weafer received a voice mail message from Charles

Claybaugh, who is identified in the record as an employee of the

assessors' office, advising him that the assessors "[had] no

record of a Fiscal '15 abatement [application] being filed."

Weafer contacted Claybaugh and expressed his "belief that the

2014 Petition [application for abatement] would apply to all tax

years, including [fiscal year] 2015."    Thereafter, on May 28,

2015, counsel for Veolia filed an abatement application with the

assessors for fiscal year 2015 on State Tax Form 128, a form

approved by the commissioner.    The assessors denied the

application as untimely filed, and Veolia appealed to the tax

board.
                                                                     5


    A hearing was held before the tax board on October 5, 2015.6

Prior to the hearing, the assessors filed a motion to dismiss

Veolia's appeal on the ground that the tax board lacked

jurisdiction because Veolia's abatement application had not been

filed within the time period prescribed by the statute.     Veolia

opposed the motion, contending that its letter to the tax

collector dated January 21, 2015, which accompanied its third

quarterly tax payment, constituted a valid abatement application

because it had provided notice to the assessors of Veolia's

challenge to the assessed tax and had incorporated by reference

the application for abatement for fiscal year 2014.   According

to Veolia, the abatement application filed on May 28, 2015, was

merely a "protective" filing because, if its then-pending appeal

from the assessors' denial of its fiscal year 2014 abatement

application was successful (as turned out to be the case at the

tax board, but as to which judicial review remains pending, see

note 5, supra), the tax board's decision that the property is

exempt from taxation would be binding on subsequent tax

assessments.

    The tax board agreed with the assessors and dismissed

Veolia's appeal.   The tax board reasoned that Veolia had failed

to satisfy the statute's jurisdictional requirements in three




    6   See G. L. c. 59, §§ 64, 65.
                                                                      6


respects, any one of which would warrant dismissal of its

appeal.   First, the tax board found that Veolia's letter dated

January 21, 2015, to the tax collector did not constitute an

"[application] in writing to the assessors."     Second, that

letter was not "a form approved by the commissioner."        And

third, while the abatement application filed on May 28, 2015,

was submitted on State Tax Form 128, a form approved by the

commissioner, it was nonetheless filed more than three months

after the deadline of February 6, 2015.

    Discussion.    Our review of a decision of the tax board is

deferential.   "We will not modify or reverse a decision of the

[tax] board if the decision is based on both substantial

evidence and a correct application of the law."     Boston

Professional Hockey Ass'n, Inc. v. Commissioner of Revenue, 443

Mass. 276, 285 (2005).     "Although the proper interpretation of a

statute is for a court to determine, we recognize the [tax]

board's expertise in the administration of tax statutes and give

weight to the [tax] board's interpretations."     Adams v.

Assessors of Westport, 76 Mass. App. Ct. 180, 183 (2010),

quoting Raytheon Co. v. Commissioner of Revenue, 455 Mass. 334,

337 (2009).    In this case, we agree with the reasoning of the

tax board in all material respects and discern no basis for

disturbing its decision.
                                                                   7


     It is well settled that the remedy of abatement is a

statutory one, and if any of the statute's requirements are not

complied with, the remedy is lost.   "Since the remedy by

abatement is created by statute the board of tax appeals has no

jurisdiction to entertain proceedings for relief by abatement

begun at a later time or prosecuted in a different manner than

is prescribed by the statute."   Assessors of Boston v. Suffolk

Law Sch., 295 Mass. 489, 492 (1936).   The court's decision in

Suffolk Law Sch. has been consistently cited with approval.7

See, e.g., Aetna Life Ins. Co. v. Commissioner of Corps. &

Taxation, 323 Mass. 657, 659-661 (1949) (tax board had no

jurisdiction to entertain application for abatement of excise

tax where original application was not on form approved by

commissioner); Assessors of Brookline v. Prudential Ins. Co.,

310 Mass. 300, 308 (1941) (abatement "application is a

constituent part of the statutory remedy" and "is the method by


     7 The primary obstacle to jurisdiction in Suffolk Law Sch.
was the taxpayer's failure to submit an abatement application in
the prescribed form. The taxpayer's application was
"typewritten on a plain sheet of paper," as opposed to a form
approved by the commissioner. Suffolk Law Sch., 295 Mass. at
494-495. Veolia attempts to distinguish the present case on the
ground that the letters that accompanied its quarterly tax
payments incorporated by reference the prior valid abatement
application submitted in 2014. We are not persuaded. The
letters upon which Veolia relies are not "notice" letters, as
Veolia suggests. On the contrary, they are more accurately
described as cover letters and, in any event, as discussed
infra, because the letters were not sent to the assessors, they
did not satisfy the statute's requirements.
                                                                   8


which the statutory proceeding is begun"; it "must be begun by a

proper application within the period fixed by the statute"); Old

Colony R.R. v. Assessors of Quincy, 305 Mass. 509, 511-512

(1940) ("the time within which the application [for abatement]

is to be made is not a mere matter of limitation but is an

integral part of the right, and the failure to apply within the

prescribed time destroys the right").   See also MacDonald v.

Assessors of Mashpee, 381 Mass. 724, 725-726 (1980) (tax board

had jurisdiction because, although "failure to make a timely

application for an abatement would be fatal," taxpayer timely

filed application for abatement that contained information

sufficient to satisfy statute's requirements).

    Veolia, as the taxpayer seeking relief, had the burden of

demonstrating that the tax board had jurisdiction over its

appeal.   See Children's Hosp. Med. Ctr. v. Assessors of Boston,

388 Mass. 832, 841 (1983).   Veolia, therefore, was required to

show that it had complied with the statute by filing an

application for abatement 1) on or before February 6, 2015; 2)

to the assessors; and 3) on a form approved by the commissioner.

    Veolia asserts that each of the letters that accompanied

its first three quarterly tax payments for fiscal year 2015

satisfied the statute's prerequisites because they were received
                                                                    9


before the deadline of February 6, 2015,8 and put the assessors

on notice of its claim that the assessed tax was unlawful.

However, while the letters upon which Veolia relies were sent

before the statutory deadline, Veolia failed to demonstrate that

the letters were sent to the assessors as required by the

statute.   As previously noted, all four letters were sent to the

tax collector.9   "[T]he rule is long entrenched that applying for

an abatement connotes placing the application in the hands of

the authority which is to consider it."   Tilcon Mass., Inc. v.

Commissioner of Revenue, 30 Mass. App. Ct. 264, 265 (1991).

     Furthermore, none of the letters satisfied the statute's

requirement that an application for abatement be submitted on a

form approved by the commissioner.   It matters not, as Veolia

claims, that the letters contain information similar to that

required by the approved form.   Adherence to the statutory




     8 Veolia does not argue that the application it filed on May
28, 2015, was timely. Instead, Veolia claims that it "relates
back" to the prior letters submitted with its quarterly tax
payments.

     9 Veolia points to the fact that the letter dated October
14, 2014, which accompanied its second quarterly tax payment,
bears a stamp indicating receipt by the "assessing dept." and
claims that the presence of the stamp proves that the assessors
received it. Although the board made no finding to this effect,
the assessors conceded at oral argument that the letter had been
received by them. However, even if the letter, which was
addressed to the tax collector, was delivered to the assessors,
Veolia's position is not improved because, as discussed infra,
the letter is not a form approved by the commissioner.
                                                                   10


prerequisites is essential "to effective application for

abatement of taxes and to prosecution of appeal from refusals to

abate taxes."   New Bedford Gas & Edison Light Co. v. Assessors

of Dartmouth, 368 Mass. 745, 747 (1975).    We therefore agree

with the conclusion reached by the tax board that Veolia did not

comply with the statute and, as a result, that it failed to

demonstrate that the tax board had jurisdiction over its appeal.

     Lastly, Veolia claims that by dismissing its appeal, the

tax board failed to conform to the Federal and State due process

protections to which it is entitled.    According to Veolia, the

statute's requirements should be construed liberally and in

favor of the taxpayer, particularly when the taxpayer makes a

good faith effort to comply.   The flaw in this argument is that

our cases do not recognize a good faith exception to compliance

with the statute's mandatory requirements.10   Veolia also argues

that the tax board's narrow interpretation of the statute's

jurisdictional requirements deprived it of a fair opportunity to

pursue a remedy.   We disagree.   Veolia had the same remedy

available to it in 2015 as it did in 2014, when it filed a


     10"The lack of an application in the statutory form is not
excused by the good faith of the taxpayer, or acceptance by the
assessors of an application in some other form nor by the fact
that the assessors are not inconvenienced or misled." Suffolk
Law Sch., 295 Mass. at 494. In determining whether the
application meets the requirements of the statute, such facts
may be considered material, however, they "do not excuse clear
noncompliance with these requirements." Id.
                                                                    11


timely, valid abatement application.     Veolia lost that remedy in

2015 through its failure to follow the statutory procedures and

not because it was deprived of an opportunity to be heard.

    In reaching our conclusion, we acknowledge that the result

is a harsh one for Veolia, and will be particularly severe if

the tax board's decision that the tax levied on its personal

property for fiscal year 2014 was assessed unlawfully is

affirmed.    However, neither the statute, nor the relevant case

law, permit a different conclusion.     On the contrary, the

Legislature has given no indication that cases interpreting the

jurisdictional requirements of § 59, which was amended to

include the present language in 1933, was not in accordance with

its intention.

    Appellate attorneys' fees and costs.      The assessors argue

that they are entitled to reasonable attorney's fees and double

costs because Veolia has pursued an insubstantial and frivolous

appeal.     See Mass. R. A. P. 25, as appearing in 376 Mass. 949

(1979).   The request is denied.

                                      Decision of Appellate Tax
                                        Board affirmed.
    HENRY, J. (concurring).      I reluctantly agree with the

opinion of the court that we are constrained by existing case

law to rule that the Appellate Tax Board lacked jurisdiction

over Veolia Energy Boston, Inc.'s (Veolia) appeal from the

denial of its application for abatement of personal property tax

assessed for fiscal year 2015.     I write separately to underscore

how harsh this ruling is:     had Veolia filed the form approved by

the Commissioner of Revenue (commissioner), the board of

assessors of Boston (assessors) would have received no more

information than Veolia's October 14, 2014, letter already

provided, and yet its claim is barred.

    As discussed in the court's opinion, G. L. c. 59, § 59,

delineates specific requirements for a proper tax abatement

application, to which Assessors of Boston v. Suffolk Law Sch.,

295 Mass. 489, 492 (1936) (Suffolk Law), requires strict

adherence.     While we are constrained to follow Suffolk Law, it

is worth noting that that case involved an initial challenge to

a taxation decision, not a subsequent challenge in a subsequent

year.   Id.    In other contexts, the Supreme Judicial Court has

found discretion around the edges of a seemingly rigid statutory

requirement.     See generally Beres v. Board of Registration of

Chiropractors, 459 Mass. 1012, 1013 (2011) (applicable statute

required petition to be filed in Supreme Judicial Court but,

where action was filed in wrong court, Supreme Judicial Court
                                                                       2


remanded with instruction to exercise discretion in considering

transfer of matter).     The Supreme Judicial Court could apply

similar discretion in this case, particularly where the correct

form was filed in the first instance.

     Veolia's October 14, 2014, letter was received by the

assessors in a timely manner.     See ante at ___ n.9.   That letter

notified the assessors that Veolia challenged the 2015 fiscal

year tax assessment and that it was doing so for the same reason

already being litigated by Veolia against the assessors for the

prior fiscal year.   That litigation commenced after Veolia filed

a challenge to the tax on the right form for fiscal year 2014.

It is undisputed that there is no substantive difference between

the forms approved by the commissioner for fiscal years 2014 and

2015.   Veolia's abatement argument is a challenge to whether the

property at issue can be taxed at all, not to the rate of

taxation or the value of the property.    In other words, Veolia

is raising the exact same challenge for fiscal year 2015 that it

made for fiscal year 2014, and the assessors had timely notice

of that fact through the October 2014 letter and reference to

the fiscal year 2014 challenge.    Indeed, the assessors admitted

at oral argument that it would have been sufficient for Veolia

to submit a copy of its fiscal year 2014 form stapled to a blank

fiscal year 2015 form.
                                                                    3


    Unless and until the Legislature amends the statute or the

Supreme Judicial Court applies its discretion, a cautious

taxpayer will file the designated form each and every year while

the first abatement action is pending, after which each

subsequent abatement application will be stayed or joined to the

original proceeding.   This process will be repeated year after

year until the original proceeding has concluded and its result

will cascade through the subsequent tax years.   These additional

filings are unnecessary and will result in multiple actions --

here five and counting -- when one could suffice.
