2005-934, GAIL C. NADEAU 1994 TRUST & a. v. CITY OF PORTSMOUTH & a.

unconstitutionally disproportionate. We reverse.

(

tax, RSA 76:3 (2003), for tax years 2002, 2003 and 2004 were McHugh, J.) ruling that tax assessments made under the education property BRODERICK, C.J. The State appeals an order of the Superior Court

and Ms. Edwards orally), for respondent State of New Hampshire. general, and Laura E. B. Lombardi, assistant attorney general, on the brief, Kelly A. Ayotte, attorney general (Anne M. Edwards, associate attorney

brief), for the petitioners. Offices, P.L.L.C., of Portsmouth (J.P. Nadeau and Justin P. Nadeau on the Laurie A. Lacoste on the brief, and Mr. Shaines orally), and Nadeau Law Shaines & McEachern, P.A., of Portsmouth (Robert A. Shaines and

page is: http://www.courts.state.nh.us/supreme. v.

No. 2005-934 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Rockingham Readers are requested to notify the Reporter, Supreme Court of New ___________________________

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as property tax. p. 2 having to pay an unfair amount of the statewide educational

“prerequisite of a tax abatement appeal” that a property owner present

their [own] and other municipalities as resulting in their

unconstitutional. of the State Constitution; and (3) lacked jurisdiction to declare the tax property tax burden.” Accordingly, the trial court ruled that it is not a the constitutionality of the tax. determining that the tax, as applied to the petitioners, violated Part II, Article 5 process, they were forced to pay an unequal and unfair share of the statewide respondent pursuant to RSA 514:10 (2007) because the petitioners challenged [department of revenue administration]’s fundamentally flawed equalization Rather, they focused on the alleged unequal property values in Constitution. The trial court joined the State of New Hampshire as a appraised at both less and more than its fair market value, and because of the introduced their individual assessments into evidence. “namely . . . claiming that because property in several communities was similar properties in their municipalities. In fact, they never plaintiffs in Sirrell used the same approach as the petitioners in this case, individual property assessments.” The trial court reasoned that because the 364 (2001), “appears to permit a collateral attack on general as well as Nevertheless, the trial court found that our decision in Sirrell v. State, 146 N.H.

paying more than their proportionate share of the property tax; (2) erred in erred by ruling that the petitioners are not required to prove that they are 2007) is disproportionate in violation of Part II, Article 5 of the New Hampshire they do not claim their individual assessments are higher than [t]he plaintiffs’ appeals are not conventional in the sense that

The trial court’s order recognizes at the outset that

those tax years as well. The State appeals, arguing that the trial court: (1) education property tax assessed pursuant to RSA 76:3 and :8 (2003 & Supp. constitutional defects in the tax as applied to tax year 2002 were present for pursuant to RSA 76:16 (Supp. 2006). The petitioners claimed that the the evidence regarding the assessments for tax years 2003 and 2004, the by the petitioners appealing denials of tax abatement applications filed motion by the petitioners, the trial court subsequently ruled that, based upon and evidenced a widespread scheme of intentional discrimination. Upon assessments for the 2002 tax year were unconstitutionally disproportionate Following a bench trial, the court ruled that the petitioners’ tax

Portsmouth and the Town of Rye. This case consolidates four actions brought The petitioners own commercial and residential real estate in the City of sufficient based upon our decision in

assessments the municipalities placed on those recently-sold properties.” The sales occurring in close proximity to April 1, 2002 in four communities and the decision in Sirrell did not change the burden of showing individual by proving “a widespread disparity between the purchase price of property in procedural difference, however, is fatal to the petitioners’ challenge as our this case have chosen to attack the law through the abatement process.” This their property. to find that the educational property tax was unconstitutional, the plaintiffs in whereas in Sirrell the plaintiffs sought a declaratory judgment asking the court procedurally, the only difference between this case and Sirrell “was that widespread intentional discrimination. As the trial court’s order notes, was available to challenge the statewide property tax upon the basis of

respect to the taxes of other property owners in the taxing district.” petitioner must “prove that his tax was greater than it should have been with that the petitioners had met their burden of showing disproportionality simply Town of Sanbornton burden by focusing in on the particular assessment placed on, 150 N.H. p. 3 363, 368 (2003). Rather, the trial court found the percentage at which property is generally assessed in the [State].” municipalities. The plaintiffs are not required to meet their Porter v. that their “property is assessed at a higher percentage of fair market value than can be shown by proving widespread disparity in and between In this case, the trial court did not find that the petitioners had proved the property owner to show actual harm. However, that harm plaintiff’s tax burden to other taxpayers. simply determining that a tax is unlawful, because that would merely shift the other taxpayers.” Id. consistently held that in granting an abatement, “justice requires” more than whether the petitioner is unlawfully or unjustly taxed as between him and the v. Claremont, 106 N.H. 85, 87 (1964). Therefore, “[t]he question to be tried is

at 177. Accordingly, in order to prevail in a petition for abatement, the of proportion to other property owners in the taxing district.” Porter, 15 p. 3 3 N.H. an abatement proceeding is whether the government has taxed the plaintiff out (2006). “Since Bretton Woods, we have repeatedly reaffirmed that the issue in N.H. 428, 430-31 (1930); Porter v. Town of Sandwich, 153 N.H. 175, 177 that the plaintiffs make in this case. The burden remains with See Bretton Woods Co. v. Carroll, 84

proceeding “shall make such order thereon as justice requires.” We have Pursuant to RSA 76:17 (200 p. 3 3), the superior court in an abatement

The property owner can in fact make the general arguments

of that value with the municipality’s assessment.” Rather, the trial court ruled: “evidence of his or her own property’s fair market value and then a comparison p. 4 4

of taxes.” offering any “evidence that they are paying more than their proportional share

DALIANIS, DUGGAN, GALWAY and HICKS, JJ., concurred. abatement actions that the petitioners met their burden of proof without

tax. Ainsworth, 106 N.H. at 89-90. such proof, the petitioners failed to demonstrate that they were harmed by the share of a tax is an essential element in any abatement case. By failing to offer establish that they paid more than their fair share of taxes. to pay.” Id. at 369. Proof that the taxpayer paid more than his or her fair demonstrating that he or she is paying a higher amount than he or she ought consolidated into a single trial, each plaintiff bears the burden of

Sanbornton, 150 N.H. at 367. “[E]ven if multiple petitions are

We hold that the trial court erred as a matter of law in ruling in these

v. Boardman, 58 N.H. 580, 589 (1879). N.H. at p. 4 431; Amoskeag Mfg. Co. v. Manchester, 70 N.H. 200, 205 (1899); Edes Sandwich, 153 N.H. at 177; Sanbornton, 150 N.H. at 367; Bretton Woods, 84

strayed from the rule that in abatement actions taxpayers are required to disproportionality in an abatement proceeding. To the contrary, we have never