2019-0061, Appeal of Keith R. Mader 2000 Revocable Trust & a.

Christopher Redondi; Amy Redondi; and Engeocom Bartlett, LLC. Living Trust; Mary F. Carlucci Living Trust; Mark J. Gallagher; Paula J. Ga llagher; TJF Trust; McPhearson; Bryce Blair; Kathi Blair; Eileen A. Figueroa Revocable Trust; Joseph A. Carlucci Creek, LLC; Robert McInnis; Marie McInnis; Slalom Realty Trust; JR Realty Trust; Carol There are eighteen petitioners in this matter: Keith R. Mader 2000 Revocable Trust; Bearfoot 1

certification requirement of New Hampshire Administrative Rules, Tax 203.02 the petitioners’ abatement applications failed to comply with the signature and respondent, Town of Bartlett (Town). The BTLA dismissed the appeals beca use the denials of applications for abatements of real estate taxes issued by the Hampshire Board of Tax and Land Appeals (BTLA) dismissing their appeals of HANTZ MARCONI, J. The petitioners appeal a decision of the New 1

respondent. and Brendan A. O’Donnell on the brief, and Mr. Hilson orally), for the Donahue, Tucker & Ciandella, PLLC, of Exeter (Christopher T. Hilson

brief and orally), for the petitioner s. Cooper Cargill Chant, P.A., of North Conway (Randall F. Cooper on the

(New Hampshire Board of Tax and Land Appeals) APPEAL OF KEITH R. MADER 2000 REVOCAB LE TRUST & a.

No. 2019 - 0061 Board of Tax and Land Appeals

http://www.courts.state.nh.us/supreme. release. The direct address of the court ’ s home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their reported by e - mail at the following address: reporter@courts.state.nh. us. corrections may be made before the opinion goes to press. Errors may be Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well 2

Holdings at Sugar Hill v. Town of Sugar Hill, 164 N.H. 36, 40 ( p. 2 2012). certifications was not the reason for the denials. See RSA 76:16, III(g) (Supp. 2019); Henderson Although the Town denied the abatement applications, the lack of the petitioners’ signatures and 2

their motion, t he petitioners submitted personally signed affidavits in which and not willful neglect.” See N.H. Admin. R., Tax p. 2 203.02(d). In addition to applications, but contended that the omissions were “due to reasonable cause they had not personally signed or certified their respective abatement signature and certification requirement. The petitioners acknowledged that 24, the petitioners filed a motion seeking an exception from Tax 203.02’s applications filed with the Town in compliance with [Tax 203.02].” On October requested “written proof” that the petitioners “signed the abatement appealed to the BTLA on August 27. By letter dated October 10, t he BTLA T he Town denied the abatement applications, and t he petitioners 2

of his knowledge. application and that the facts as stated in the application were true to the best each application, Cooper certified that there was a good faith basis for the applications. Rather, Cooper, as their attorney, signed on their behal f. As to February p. 2 27. The petitioner s did not personally sign or certify their respective abatement applications, which were submitted to the Town o n or about Cooper returned from vacation on February 26 and prepared the

away on vacatio n. the terms of the representation a greement until February p. 2 20, while Cooper was r epresentation a greement. According to the petitioners, the y did not agree to confirm the firm’s availability to perform an appraisal and sent Rader a Before leaving for vacation, Cooper contacted an apprais al firm to

submit the m. applications were due to the Town by March 1, he would be able to timely return until February p. 2 2 6. Cooper assured Rader that, even though abatement he was leaving in two days for a vacation out of the country and would not communicating that he was willing to represent the property owners, but that taxes facing property owners. Coope r responded by e - mail that same day, requesting l egal representation due to a substantial increase in real estate a message left by James Rader, the principal of the condominium developer, located out of state. On February 7, 2018, Attorney Randall F. Cooper received condominium development in Bartlett, and, w ith one exception, the y are for the purposes of this appeal. The petitioners own property at a The following facts were found by the BTLA or are otherwise undisputed

neglect.” See N.H. Admin. R., Tax p. 2 20 p. 3 3.02 (d). We vacate and remand. demonstrate that these fai lures were “due to reasonabl e cause and not willful (Tax 203.02), and because the BTLA found that the petitioners did not 3

implement. GGP Steeplegate, 150 N.H. at 686 (quotation omitted). construed liber ally, in advancement of the r ule of remedial justice which” they implement, administrative rules governing tax abatement appeals “should be N.H. 148, 154 (1927). Like the statutory scheme they are designed to City of Concord, 150 N.H. 68 p. 3 3, 686 (2004); see also Arlington Mills v. Salem, 83 proceedings free from technical and formal obstructions.” GGP Steeplegate v. mindful that the statutory tax abatement scheme “is written to make the result. See id. at 187. Moreover, in construing the BTLA’s rules we are rule together to effectuate its overall purpose and to avoid an absurd or unjust Silva, 172 N.H 183, 186 - 87 (2019). We construe all parts of an administrative and ordinary meaning to the words used in administrative rules. See Appeal of statutes and adminis trative rules. Id. Where possible, we ascribe the plain (2018). We use the same principles of construction when interpreting both of law subject to de novo review. See Appeal of Cook, 170 N.H. 746, 749 interpretation of a rule, like the interpretation of a statute, presents a question Resolution of this case requires us to interpret administrative rules. The

be set aside. See Wilson, 161 N.H. at 661. I f we find t hat the BTLA misapprehended or misapplied the law, its order will of Cole, 171 N.H. 40 p. 3 3, 412 (2018); Appeal of Wilson, 161 N.H. 659, 661 (2011). a statute or a regulation is to be decided ultimately by this court. See Appeal Charlestown, 166 N.H. at 499; see RSA 541:13. However, the interpretation of findings of fact are deemed prima facie lawful and reasonable. Tow n of unlawful. See Town of Charlestown, 166 N.H. at 499; RSA 541:13. The BTLA’s burden of demonstrating that the BTLA’s decision was clearly unreasonable or 166 N.H. 498, 499 - 500 (2014); see RSA 54 1:13. The appealing party has the that such order is unjust or unreasonable. Appeal of Town of Charlestown, errors of law, unless we are satisfied, by a clear preponderance of the evidence, RSA 541:13 (2007). We will not set aside or vacate a BTLA decision except for App eal of N.H. Elec. Coop., 170 N.H. 66, 72 (2017); see RSA 71 - B:12 (2012); Our standard for reviewing BTLA decisions is set forth by statute.

rehearing, which the BTLA denied. This appeal followed. plans do not constitute reasonable cause.” The petitioners filed a motion for signatures and certificatio ns prior to filing,” and that his “anticipated vacation [that Coop er] made a conscious decision not to obtain the Taxpayers’ to the latter finding, the BTLA stated that “[t]he record presented indicates that these failures were “due to reasonable cause and not willful neglect.” As requirement, and further found that the petitioners had failed to demonstrate the petitioners failed to comply with Tax 20 p. 3 3.02’s signature and cert ification The BTLA denied the motion and dismissed the appeals. It found that

their respective applications were filed. they certified that they had good faith bases to seek abatements at the time p. 4 4

in BTLA regulations). But cf. N.H. Admin. R., Tax 102.02 (“‘Accident, mistake, regulations. See N.H. Admin. R., Tax 102.01 -. p. 4 40 (defining certain t erms used Neither “reasonable cause” nor “willful neglect” is defined in the BTLA’s

at 7 p. 4 49. and not willful neglect exception in Tax 2 03.02 (d) de novo. See Cook, 170 N.H. 249 n.8 (1985); Cook, 170 N.H. at 749. Thus, we analyze the reasonable cause under Tax 203.02 are ones of law. See United States v. Boyle, 469 U.S. 241, the questions of wh at elements constitute reasonable cause or willful neglect cause or willful neglect exist s in a particular case is one of fact for the BTLA, RSA ch. 71 - A (repealed 1985)). Although the question of whether reasonable cause rather than willful neglect under a since - repealed taxation statute, see demonstrated that his failure to timely file tax return was due to reasonable imposing additional taxes as an implicit finding that plaintiff had not Development, Inc., 121 N.H. 881, 884 - 85 (1981) (construing agency order and not willful neglect exception in Tax 203.0 2. But cf. Appeal of Steel e Hill We have not previously had occasion to construe the reasonabl e cause

certifications w as due to reasonable cause and not willful neglect. the BTLA’s ruling that they did not demonstrate that the lack of signatures and sign or certify their abatement applications. Instead, the petitioners contest There is no dispute in this case that the petitioners did not personally

Sugar Hill, 16 p. 4 4 N.H. 36, 40 (2012). not willful neglect.” Id.; see also H enderson Holdings at Sugar Hill v. Town of that application to the BTLA if the omission is “due to reasonable cause and municipal abatement application does not preclude an appeal of the denial of taxpayer’s, the lack of a taxpayer’s personal signature and certification on a plainly states that an attorney may not substitute his or her signature for the N.H. Admin. R., Tax 203.02(d) (emphasis added). Thus, although the rule

unless it was due to reasonable cause and not willful neglect. certification shall preclude an RSA 76:16 - a appeal to the board representation. The lack of the taxpayer’s signature and along with the taxpayer to indicate the attorney’s or agent’s An attorney or agent may, however, sign the abatement application agent shall not sign the abatement app lication for the taxpayer. The taxpayer shall sign the abatement application. An attorney or

The rule further provides: faith basis and the facts stated are true.” N.H. Admin. R., Tax 203.02(b)( p. 4 4). include “[t]he taxpayer’s signature. . . certifying that the application has a good abatement applications. As is relevant to this case, the application must Tax 203.02(a). Tax 203.02 imposes several requirements on municipal pre requisite to the BTLA’s review of an abatement request. See N.H. Admin. R., The submission of an abatement application to a municipality is a p. 5 5

file a tax return was due to reasonable cause and not willful neglect under a us” to conclude that the taxpayer had the burden of proving that his failure to upon “[f]ederal courts that have dealt with . . . language similar to that before filing requirements. See Steele Hill Development, 121 N.H. at 88 p. 5 5 (relying tracks with federal laws that can excuse the failure to meet certain tax return s imilar to Tax 203.02(d)’s “reasonable cause and not willful neglect” standard, The construction we gave to RSA 275:44, IV in Ives, which uses language

at 80 1 - 0 2. though the employer had the funds available to pay them. See Ives, 126 N.H. RSA 27 p. 5 5:44, IV by focusing on whether the employer withheld wages even Thus, Ives gave meaning to the “willfully and without good cause” standard in employer did not have a bona fide belief it was unable to pay said wages). that employer did not willfully withhold wages because the record showed the (2003) (applying construction of RSA 275:44, IV from Ives; rejecting argument (emphasis added); see also Richmond v. Hutchinson, 149 N.H. 74 9, 751 - 52 owed and despite financial ability to pay them.” Ives, 126 N.H. at 8 0 2 employer withholds wages “voluntarily, with knowledge that the wages are good cause fails to pay an employee wages under RSA 275:44, IV when the Ives, 126 N.H. at 801. In Ives, we stated that an employer willfully and without statute, the employer is liable for liquidated damages. RSA 275:44, IV; see fails to pay an employee wages as required under” other paragraphs of the issue in Ives, provides that “[i]f an employer willfully and without good cause (2010) in Ives. See Ives, 126 N.H. at 801 - 02. RSA 275:44, IV, which was at at 45, 53. Morgan is consistent with the construction we gave RSA 275:44 statutes by “circumstances beyond his reasonable contr ol.” Morgan, 144 N.H. entry statutes because he was not prevented from complying with those Pharmacy that the petitioner willfully violated specific recordkeeping and data In Morgan, we upheld a finding of the New Hampshire Board of

Subaru, Inc., 12 p. 6 6 N.H. 796, 801 - 02 (198 p. 5 5). possible under the circumstances. See id. at 52 - 53; Ives v. Manchester or regulation was willful based upon whether compliance was reasonably contexts, for example, we have analyzed whether noncompliance with a statute have be en taken accidentally or on the basis of a mistake of fact. In certain construction mean that, in order for a given action to be non willful, it must every context,” Morgan, 144 N.H. at 52. Nor does this oft - repeated (2004), our case law does not “indicate an intent to define ‘willful’ the same in basis of a mistake of fact, see, e.g., M iller v. Slania Enters., 150 N.H. 655, 662 have often stated that actions are not willful when taken accidentally or on the accord Rood v. Moore, 148 N.H. 378, 379 (2002). Furthermore, a lthough we it is used.” Appeal of Morgan, 144 N.H. 44, 52 (1999) (quotation omitted); that “[w]illful is a word of many meanings depending up on the context in which to guard against or provide for.” (emphasis added)). W e have noted, however, neglect, or something that a reasonably prudent person would not be expected or misfortune’ means something outside the party’s own control and not due to 6

Circuit Court of Appeals, “we believe that ‘reasonable cause and not willful persuasive. See Steele Hill Development, 121 N.H. at 885. Like the Second to Tax 203.02(d)’s “reasonable cause and not willful neglect” standard highly We find these federal authorities involving materially identical language

U.S. at 24 p. 6 6 n.4). int entional failure.’” East Wind Indus tries, 196 F.3d at 504 (quoting Boyle, 469 . . . was the result ‘neither of carelessness, reckless indifference, nor failure was not due to willful neglect, “the taxpayer must show tha t the failure failure or reckless indifference.” Id. “Stated another way,” to show that a “the term ‘willful neglect’ may be read as meaning a conscious, intentional phrase’s] presence in the” Internal Revenue Code. Id. A s used in the Code, mea ning of “willful neglect” had “become clear over the near - 70 years of [the phrase in Boyle. See Boyle, 469 U.S. at 245. T he Court stated that the As for “willful neglect,” the United States Supreme Court construed that

b usiness care and prudence.” Id. based on all the facts and circumstances, the taxpayer exercised ordinary threshold inquiry” under the federal reasonable cause standard “is whether, occurred,” 2 p. 6 6 C.F.R. § 301.6724 - 1(a). See In re Refco, 554 B.R. at 742. “[T]he or she “acted in a responsible manner . . . both befor e and after the failure filer’s control,” 26 C.F.R. § 301.6724 - 1(a)(2)(ii), and the filer establishes that he that reasonable cause will exist if “[t]he failure arose from events beyond the with certain statutorily mandated inform ation reporting requirements states § 301.6651 - 1(c)(1). Similarly, the regulation applicable to the failure to comply nevertheless unable to file the return within the prescribed time.” 26 C.F.R. “[i] f the taxpayer exercised ordinary business care and prudence and was timely file a tax return states that a delay in filing is due to reasonable cause 301.6724 - 1(a) (2) (2019). The Treasury Regulation applicable to the failure to is defined by Treasury Regulations, see 26 C.F.R. § § 301.6651 - 1(c)(1) (2019), Internal Revenue Code, see East Wind Indus tries, 196 F.3d at 504, the former Although neither “reasonable cause” nor “willful neglect” is defined in the

B.R. p. 7 73 p. 6 6, 742 (Bankr. D. Del. 2016). 26 U.S.C. § 6724(a) (2018); see In re Refco Public Commodity Pool, L.P., 554 shown that such failur e is due to reasonable cause and not to w illful neglect.” certain information reporting requirements are not subject to penalties “if it is 168 A.L.R. Fed. 461 (2001). Furthermore, taxpayers who fail to comply with Tax, Under § 6651(a) of Internal Revenue Code of 1986 (26 U.S.C.A. § 6651(a)), Constitutes “R easonable Cause” Ex cusing Failure to File Tax Retur n or to Pay What, Other Than Reliance on Attorne y, Accountant, or Ot her Expert, see 26 U.S.C. § 6651(a) (2018). See generally Ann K. Wooster, Annotation, East Wind Industries, Inc. v. United States, 196 F.3d 499, 504 (3d Cir. 1999); such failure was due to ‘reasonable cause’ and not due to ‘willful neglect.’” penalties for the failure to file returns . . . unless the taxpayer can show that since - repealed statute). The Internal Revenue Code “imposes mandatory 7

prudence, and that the taxpayer was not recklessly indifferent to the signature comply with that requirement despite exercising ordinary business care and requirement when the taxpayer can show that it was not reasonably possible to appeals to the BTLA despite noncompliance with the signature and certification and certifications; r ather, we construe the standard to permit abatement whether the taxpayers intended to submit applications without their signatures the rule’s reasonable cause and not willful n eglect standard to focus on 52. In light of Tax 203.02’s context, as discussed above, we do not construe regulation depends upon the context in which it appears. Morgan, 144 N.H. at “willful,” but the proper interpretation of “willful” in a given statute or focus is perhaps understandable in light of Tax 203.02 (d)’s use of the word focus, at least in part, on whether the omissions were intentional. Such a dismissing the ir appeals suggests that the BTLA construed the standard to “conscious decision” to omit the petitioners’ signatures as a justification for cause and not will ful neglect standard, that the BTLA offered Cooper’s Although the BTLA did not explain how it construed Tax 203.02 (d) ’s reasonable in preparing the abatement applications after returning from vacation. conscious decision not to obtain the Taxpayers’ signatures and certifications” because, in part, “[t] he record presented indicate[d] [that Cooper] made a taxpayers’ signatures was due to reasonable cause and not willful neglect “bereft of supporting facts” that would warrant a finding that the lack of the In this case, the BTLA concluded that the administrative record was

preparing the application. was not recklessly indifferent to the signature and certification requirement in the taxpayer’s signature and certification, and can further show that he or she and prudence, it was not reasonably possible to submit the application with issue if the taxpayer can show that, despite exercising ordi nary business care despite the lack of a taxpayer’s signature and certification on the application at and not willful neglect exception as permitting abatement appeals to the BTLA For all of these reasons, we construe Tax 203.02(d) ’s reasonable cause

guard against or provide for,” N.H. Admin. R., Tax 102.02. or to “something that a reasonably prudent person would not be expected to neglect” when it is attributable to “something outside the party’s own control” regulations, which appear to contemplate that a party’s action is “not due to omitted); accord Arlington Mills, p. 8 83 N.H. at 154, as well as the BTLA’ s own and formal obstructions,” GGP Steeplegate, 150 N.H. at 686 (quotation liberally,” with the goal of making abatement proceedings “free from technical interpretive rule that the tax abatement scheme “should be construed construing similar standards, see Ives, 121 N.H. at 801 - 02, our longstanding authorities discussed above, we draw support from our own case law v. United States, 125 F.3d p. 7 79, 84 (2d Cir. 1997). In addition to the federal was objectively reasonable under the circumstances.” Geral d B. Lefcourt, P.C. sense of acting consciously, but also to whether the filer’s reason for so acting neglect’ must refer not simply to whether the taxpayer acted voluntarily in the 8

Holdings, 164 N.H. at 37 - 3 p. 8 8, 40. superior court, not the BTLA, as controlling on that issue. See Henderson because the petitioner appealed the denial of its abatement application to the Henderson Holdings, the facts of which did not implicate Tax 203.02(d) the facts stated in the abatement application were true). N or do we view authorization form signed by the applicants did not contain a certification that for the abatement applicants “See agent form,” but the accompanying agent N.H. at 660 (the nonattorney representative merely wrote on the signature line has a good faith basis and that the facts stated in it are true. See Wilson, 161 necessary section of the abatement application certifying that the application candor toward the tribunal, see N. H. R. P rof. Conduct 3.3 — who signed the that question. Wilson did not involve an attorney — with a special obligation of opportunity to note th at we do not view Wilson as necessarily determinative of issue. See Antosz v. A llain, 163 N.H. 298, 302 (2012). However, we take this that the taxpayer’s attorney signed and certified the abatement application at permitting the dismissals of property tax abatement appeals on the sole basis address, at this time, whether the BTLA may lawfully promulgate a rule our decision reinstituting the petitioners’ abatement appeals, we need not the requirements of the statute they were intended to implement). In light of administrative rules were ultra vires and thus unlawful because they changed Bach v. N.H. Dep’t of Safety, 169 N.H. 8 7, 94 (2016) (concluding that prohibits attorneys from signing abatement applications for their clients. See petitioners appear to suggest that Tax 203.02(d) may be ultra vires insofar as it certifications w ere due to reasonable cause and not willful neglect, the In addition to arguing that the omissions of their signatures and

reasonable cause where time constraints made timely filing impossible). re Hudson Oil Co., Inc., 91 B.R. 932, 950 - 51 (Bankr. D. Kan. 19 p. 8 88) (finding and the Town did not reject the applications for the lack of signatures. See In returning from vacation; all but one of the petitioners were located out of state; approximately three days to complete and file the abatement application s after agreement was not signed until Cooper was away on vacation; Cooper had the following: the petitioners sought representation; the representation certifications. T hose circumstances include, but are not necessarily limited to, case that bear on the objective reasonableness for the omitted signatures and trust that the BTLA will give appropriate weight to the circumstances in this consideration in light of our construction. See Cook, 170 N.H. at 753. We Tax 203.02(d), we vacate the BTLA’s decision and remand for further and certifications “was due to reasonable cause and not willful neglect” under presented by the petitioners’ motion was whether the lack of their signatures 203.02 (d) that we announce today, however, and because the primary issue Because the BTLA did not have the benefit of the construction of Tax

N.H. Admin. R., Tax 102.02. p. 8 84; see also Ives, 121 N.H. at 801 - 02; GGP Steeplegate, 150 N.H. at 686; cf. and certification requirement. See, e.g., Gerald B. Lefcourt, P.C., 125 F.3d at p. 9 9

HICKS, BASSETT, and DONOVAN, JJ., concurred.

construe d that phrase. applications were “due to reasonable cause and not willful neglect” as we have omissions of the petitioners’ personal signatures and certifications on their abatement appeals and remand for further consideration as to whether the In summation, we vacate the BTLA’s decision dismissing the petitioner s’

See Vogel v. Vogel, 137 N.H. 321, 322 (1 p. 9 993). under the circumstances of this case, they do not warrant further discussion. We have reviewed the remaining appellate arguments and conclude that