Ask DLS: 8 of 58 Applications

This article features frequently asked questions concerning “8 of 58” applications and common scenarios that often receive favorable consideration for abatement.

This month's Ask DLS features frequently asked questions concerning “8 of 58” applications and common scenarios that often receive favorable consideration for abatement. Please see IGR-2020-10 for more information concerning the statute and application process. Please let us know if you have other areas of interest or send a question to cityandtown@dor.state.ma.us. We would like to hear from you.

What is an “8 of 58” Application?

Under G.L. 58, § 8, the Commissioner of Revenue may authorize local assessors or other assessing officers to abate local taxes or charges in cases where they do not otherwise have authority to do so. This procedure does not provide an alternative to the standard abatement procedures provided by G.L. c. 59, § 59 or other applicable law. Instead, absent extraordinary circumstances, the procedures set out in G.L. c. 59, § 59 for the abatement of real and personal property taxes constitute the remedy for an overassessment. Three factors are relevant to the Commissioner’s exercise of discretion in granting this abatement authority. First, the taxpayer was prevented by extraordinary or mitigating circumstances from seeking an abatement through the usual abatement process. Second, abatement of the tax or charge is supported by the facts. Third, granting abatement authority will correct a substantial inequity, cure a grievous hardship or provide a considerable public benefit.

In the case of a paid tax, there are additional requirements. In such cases, the Commissioner may issue abatement authority if the paid tax or charge:

(1) was made no more than three fiscal years prior to the year when an application for abatement authority is made to the Commissioner; and

(2) arose through an “obvious clerical error” in the valuation, assessment or collection process.

The following situations are frequently the subject of 8 of 58 applications and are examples of scenarios that are very often approved.

Government Owned Property

Real and personal property owned by the United States is exempt, unless Congress has expressly authorized its taxation. G.L. c. 59, § 5, cl. 1. Property owned by the Commonwealth of Massachusetts, its political subdivisions, and public authorities, and held for public purposes, is also exempt. G.L. c. 59, § 5, cl. 2. As such, 8 of 58 applications seeking abatement for real property assessments that were made on government owned land are traditionally given favorable abatement authority. A notable exception is that the commissioner will not authorize abatement of taxes attributed to the ownership of a city/town during or after an acquisition year because those taxes should be abated by the assessors under G.L. c. 59, § 72A. Upon acquisition, the city/town is required under section 72A, to adjust the taxes as of the date that title passes and collect same from the grantor for the period of the grantor’s ownership.

Duplicate Taxation of a Solar Facility which is also the Subject of a PILOT Agreement

Sometimes assessors seek to abate amounts assessed to the owner of a solar facility that is already the subject of a PILOT agreement under G.L. c. 59, § 38H. Many times, the taxpayer does not timely file for an abatement assuming the bill was just a mistake, especially if the taxpayer is current on their PILOT payments. After receiving a demand from the collector to pay the additional tax, the taxpayer sometimes contacts the assessors’ office after the period for filing an abatement has expired. DLS has routinely said that notwithstanding that the taxpayer should have known to timely file for an abatement, authority to abate may be approved in such cases because the public interest in abating a virtually duplicate assessment outweighs the taxpayer’s failure to follow the regular abatement process.

Personal Property Not in Community on Applicable January 1 Assessment Date

All personal property owned by Massachusetts and non-Massachusetts residents and businesses that is situated in Massachusetts on January 1 is taxable, unless an exemption applies. G.L. c. 59, § 18. As such, 8 of 58 applications seeking abatement for personal property assessments that were made on personal property that was not situated in the community on the applicable January 1 assessment date are traditionally given favorable abatement authority.

Overassessment Due to Affordable Housing Restriction

A case we frequently see is an affordable housing unit being over-assessed. In such cases, the taxpayer’s deed will contain an affordable housing deed restriction, pursuant to G.L. c. 40B, which reduces the valuation of the property. Many times, abatement authority is sought because the tax bill that was given to the property owner was accidentally based on a higher market rate. Additionally, there are many times where extenuating or mitigating circumstances for the taxpayer’s failure to file a timely abatement application exist. In such cases, DLS has found that granting an abatement would cure a grievous hardship, especially to a taxpayer who is of limited means. There are additional requirements if the abatement being sought has already been paid.

Helpful Resources

City & Town is brought to you by:

Editor: Dan Bertrand

Editorial Board: Marcia Bohinc, Linda Bradley, Tracy Callahan, Sean Cronin, Emily Izzo, Paula King, Jennifer Mcallister and Tony Rassias

Date published: October 5, 2023

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