2010-286, Appeal of Ned Wilson & a.

No. 2010-286

Board of Tax and Land Appeals

Northeast Property Tax Consultants, see through their non-attorney representative, Mark Lutter, doing business as The record reveals the following facts. In February 2009, the petitioners,

Gardner Fulton & Waugh, P.L.L.C. ___________________________

of their request for an abatement of real estate taxes. We affirm. dismiss their appeal of the denial by the respondent, Town of Sugar Hill (Town), decision of the New Hampshire Board of Tax and Land Appeals (BTLA) to submitted was true; section I required their representative to certify that they DALIANIS, C.J. The petitioners, Ned and Theresa Wilson, appeal the required the petitioners to sign the application and certify that the information BTLA for that purpose. See RSA 76:16 (Supp. 2010). Section H of the form Mayer Law Offices the Town for an abatement of real estate taxes, using the form provided by the

THE SUPREME COURT OF NEW HAMPSHIRE Justin Sluka on the brief, and Ms. Fulton orally), for the respondent.

for the petitioners.

(New Hampshire Board of Tax and Land Appeals)

page is: http://www.courts.state.nh.us/supreme. 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 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 (1) The taxpayer’s name, address and daytime telephone number; following: prescribed by the board or a written document that includes all of the (b) The taxpayer shall file the RSA 76:16 abatement application

municipalities, provides, in pertinent parts: Rule 203.02, which concerns abatement applications filed with

BTLA’s decision, based upon that rule, is unlawful as well. certification, Rule 203.02(d), is unlawful. Accordingly, they assert that the however, that the administrative rule requiring their signatures and abatement application and to certify that its contents were true. They argue, On appeal, the petitioners do not contest that they failed to sign their

application form. See The BTLA dismissed their appeal because they had failed to sign the abatement Town denied the abatement request, and the petitioners appealed to the BTLA. For reasons that are not reflected in the record submitted on appeal, the 458 (2005). law, its order will be set aside.” Appeal of Town of Wolfeboro, 152 N.H. 455, Our standard for review of BTLA decisions is statutory. See court. Therefore, if we find that the [BTLA] misapprehended or misapplied the 541:13. “The interpretation of a statute is to be decided ultimately by this the evidence before [us], that such order is unjust or unreasonable.” RSA “except for errors of law, unless [we are] satisfied, by a clear preponderance of id.; see also RSA 541:13. We will not set aside or vacate a BTLA decision evidence that the BTLA’s decision was clearly unreasonable or unlawful. See omitted). To prevail, the petitioners must show by a preponderance of the from which the BTLA could conclude as it did.” Id. (quotation and brackets presumption may be overcome only by a showing that there was no evidence reasonable. Appeal of Kat Paws Acres Trust, 156 N.H. 536, 537 (2007). “This (2007). The BTLA’s findings of fact are deemed prima facie lawful and

The petitioners’ motion for reconsideration was denied. This appeal followed. signatures constituted willful neglect, dismissal of their appeal was warranted. petitioners’ failure to sign the form and because Lutter’s failure to obtain their The BTLA found that because there was no reasonable cause for the

behalf was true. certification by the petitioners that the information Lutter submitted on their forms on their behalf. However, the agent authorization form did not include a authorized Lutter to act for them and sign municipality abatement and BTLA authorization form signed by the petitioners. In this form, the petitioners wrote on the signature line “See agent form” and attached the agent had signed it. The petitioners, however, did not sign the form. Instead, Lutter with certain statutes. See p. 3 The petitioners assert that Rule 203.02(d) is unlawful because it conflicts

which provides that an applicant’s failure to use the abatement application form The petitioners argue that Rule 203.02(d) conflicts with RSA 76:16, IV,

We review the BTLA’s statutory interpretation de Resolving this issue requires that we engage in statutory interpretation.

and not willful neglect. 3 RSA 76:16-a appeal to the board unless it was due to reasonable cause The lack of the taxpayer’s signature and certification shall preclude an with the taxpayer to indicate the attorney’s or agent’s representation. attorney or agent may, however, sign the abatement application along agent shall not sign the abatement application for the taxpayer. An (d) The taxpayer shall sign the abatement application. An attorney or advanced by the entire statutory scheme.” Id. (quotation omitted). able to understand the statutory language in light of the policy sought to be doing, we are better able to discern the legislature’s intent, and therefore better the context of the overall statutory scheme and not in isolation. Id. “In so legislature did not see fit to include. Id. Furthermore, we interpret statutes in will not consider what the legislature might have said or add language the words used. Id. We interpret legislative intent from the statute as written and language of the statute and ascribe the plain and ordinary meanings to the Appeal of Kat Paws Acres Trust, 156 N.H. at 537. We first examine the legislature as expressed in the words of the statute considered as a whole. Concord, 161 N.H. 169, 171 (2010). We are the final arbiter of the intent of the

(2010). statute exceed the agency’s authority. Petition of Mooney, 160 N.H. 607, 611 omitted). Moreover, agency regulations that contradict the terms of a governing modify the statute which they are intended to implement.” Id. (quotation (quotation omitted). “Thus, administrative rules may not add to, detract from, or statute.” Appeal of Mays, 161 N.H. ___, ___ (decided February 23, 2011) only to permit the board to fill in the details to effectuate the purpose of the rules necessary for the proper execution of the laws, this authority “is designed legislature may delegate to administrative agencies the power to promulgate . . . . In re Alexis O., 157 N.H. 781, 790 (2008). While the

that the taxpayer has a good faith basis and the facts contained are true. (4) The taxpayer’s signature on the abatement application certifying application along with the comparables relied upon by the taxpayer; and (3) A complete and specific statement of the grounds supporting the identified by street address and tax map and lot number; (2) The property or properties for which an abatement is sought, has failed to provide the information required p. 4 lost because an applicant has failed to sign an abatement request, or otherwise silent as to whether the right to seek tax relief from a town or the BTLA may be failure to use the form itself “shall not affect the right to seek tax relief,” it is consistent with this statutory scheme. While RSA 76:16, IV provides that the Contrary to the petitioners’ assertions, we view Rule 203.02(d) as

explaining how an abatement shall be paid. RSA 76:16, III. good faith basis and the facts in the application are true”; and (7) a statement signature “with a certification by the person applying that the application has a the applicant to list any comparable properties; (6) a place for the applicant’s applicant to state the reasons supporting the abatement request; (5) a section for process for appealing an abatement decision; (4) a section requiring the properties the person owns in the municipality; (3) a section explaining the person applying, the property for which the abatement is sought, and other include: (1) instructions for filling it out; (2) sections for information about the other information deemed necessary by the [BTLA].” By statute, the form must and “shall include” certain statutorily delineated information as well as “such The form to which RSA 76:16, I, refers “shall be prescribed by the [BTLA]”

reasonable rule for carrying out the BTLA’s functions. See Rule 203.02(d) is also consistent with RSA 76:16, III, and constitutes a

“shall not affect the right to seek tax relief,” the information required by RSA under RSA 76:16, IV, the “[f]ailure to use the form” described in RSA 76:16, III

to the [BTLA].” RSA 76:16-a, I (2003). requirements of RSA 74, upon payment of a $65 filing fee, may apply in writing Rule 203.02(d) is not contrary to and does not modify RSA 76:16, IV. grant the abatement request, “any person aggrieved, having complied with the by RSA 76:16, III. In this way, . . . in writing by July 1.” RSA 76:16, II. “If the selectmen neglect or refuse” to selectmen or assessors shall review the application and shall grant or deny [it] assessors for an abatement of the tax.” Upon receipt of the application, “the “apply in writing on the form set out in paragraph III to the selectmen or assessment of a tax and who has complied with the requirements of RSA 74” to Concerning abatements, RSA 76:16, I, allows “[a]ny person aggrieved by the reasonable rules and regulations for carrying out its functions.” RSA 71-B:8. The legislature has charged the BTLA with the authority to “make

RSA 76:16, IV. the BTLA’s functions, see RSA 71-B:8 (2003), and that it does not conflict with as a whole, we conclude that Rule 203.02(d) is a reasonable rule for carrying out exceeded its rule-making authority. We disagree. Viewing the statutory scheme appeal for failure to sign the very form that need not even be used, the BTLA has maintain that by enacting a rule by which an applicant may lose the right to set forth in RSA 76:16, III “shall not affect the right to seek tax relief.” They p. 5 5

GGP Steeplegate provide exactly what is statutorily required is not inconsistent with this goal. Id. The petitioners mistakenly contend that their case is on all fours with remain free from technical and formal obstructions,” mandating that a taxpayer statutorily required conflicted with ensuring “that tax abatement proceedings held that demanding that a taxpayer provide more information than is basis and the facts in the application are true.” While in GGP Steeplegate, we requires an applicant to sign and certify “that the application has a good faith the instant case, the petitioners failed to comply with RSA 76:16, III(g), which abatement request was sufficiently specific to satisfy the statute. By contrast, in The petitioners assert that our interpretation is inconsistent with GGP Steeplegate preclude tax relief. Id was whether the taxpayer’s brief statement of reasons supporting its specificity the reasons supporting the abatement request.” The issue in GGP permissive, failing to complete it to the satisfaction of the assessors should not complied On appeal, the taxpayer argued that because using the BTLA form is with RSA 76:16, III(e), which requires an “applicant to state with . To the contrary, we held that the taxpayer in GGP Steeplegate

taxpayer failed to provide a more detailed explanation. Id. that a town or city may not deny an abatement application solely because the that a brief explanation of the reasons for seeking an abatement is sufficient and properly completing an abatement application is minimal.” Id. at 686. We held from technical and formal obstructions,” we concluded that “the threshold for

explanation was not sufficiently specific. Id. the superior court, which upheld the assessors’ findings that the taxpayer’s the taxpayer’s assessment was excessive. Id. at 68 p. 5 5. The taxpayer appealed to the taxpayer’s application because it was insufficiently specific to establish that RSA 76:16, III. GGP Steeplegate, 150 N.H. at 684. The City of Concord denied taxpayer sought an abatement using the form provided by the BTLA pursuant to Steeplegate v. City of Concord, 150 N.H. 683, 685-86 (2004). In that case, the

statute so as to render it meaningless). statute.”); Appeal of Barry, 142 N.H. 284, 287 (1997) (we will not interpret a an absurd result and nullifying, to an appreciable extent, the purpose of the p. 5 511-12 (200 p. 6 6) (“The legislature will not be presumed to pass an act leading to 26, 2011); see also Weare Land Use Assoc. v. Town of Weare, 153 N.H. 510, which we will not do. Appeal of Johnson, 161 N.H. ___, ___ (decided January information provided is true. This would render the statute a virtual nullity, information to process such a request and without certifying that the abatement without providing either a town or the BTLA with the necessary the statutory scheme otherwise would allow a taxpayer to apply for a tax information submitted is true, affects the right to seek tax relief. To construe 76:16, III, including the taxpayer’s signature and certification that the 6

DUGGAN, HICKS, CONBOY and LYNN, JJ., concurred.

Affirmed

not list it as an issue in their motion for reconsideration, see However, they have failed to preserve this issue for our review because they did the first place, see responsible for Lutter’s willful conduct in failing to obtain their signatures. certification is inconsistent with allowing the taxpayer to have a representative in Finally, the petitioners argue that the BTLA erred when it found them While the petitioners assert that requiring the taxpayer’s signature and

150 N.H. 270, 27 p. 6 6 (2003); see also Sup. Ct. R. 16(3)(b). notice of appeal, see LaMontagne Builders v. Bowman Brook Purchase Group, 156 N.H. 347, 351-52 (2007); see also RSA 541:4 (2007), or as an issue in their

(2007). to include. Guildhall Sand & Gravel v. Town of Goshen, 155 N.H. 7 p. 6 62, 764 legislature might have said or add language that the legislature did not see fit legislative intent from the statute as written and will not consider what the shall be signed by “taxpayer or by his authorized representative”). We interpret “taxpayer or by its authorized representative”); RSA 78-C:3 (2003) (tax returns stated. See, e.g., RSA 77-A:6, I (2003) (permitting tax returns to be signed by legislature intended a representative’s signature to suffice, it could have so

RSA 71-B:7-a, we fail to see the inconsistency. Had the

requirement. signature nor the signed agent authorization form complied with this abatement and that the facts in the application are true. Neither Lutter’s taxpayer to certify that he or she has a good faith basis for applying for an comply with RSA 7 p. 6 6:16, III(g). We disagree. RSA 76:16, III(g) requires the on their tax abatement application should have been deemed sufficient to requirement that the statutory scheme be construed liberally, Lutter’s signature abatement proceedings free from technical and formal obstructions and the The petitioners argue that, consistent with the goal of keeping tax