This is an appeal from the board of taxation’s denial of an abatement and its subsequent denial of the plaintiff s motion for rehearing. The dispute involves the real estate taxes for the Salem Plaza, a shopping center in Salem, New Hampshire. The Board of Assessors for the Town of Salem assessed the value of the property at $2,029,720. At this value, the plaintiffs taxes were $102,500.86. On October 29, 1974, plaintiff applied to the board of assessors for an abatement (RSA 76:16) but the board took no action. One month later, the plaintiff paid the assessed tax. On February 27, 1975, well within the six-month statutory time limit, the plaintiff appealed to the New Hampshire Board of Taxation. RSA 76:16-a I (Supp. 1975). The board held a hearing and, on July 17, 1975, denied the appeal for an abatement. Believing that RSA ch. 541 applied, plaintiff moved for a rehearing on July 31, 1975, thereby satisfying that statute’s twenty-day limit for filing for rehearings. RSA 541:3. Three weeks later the board denied the motion. On September 9, 1975, which was more than thirty days after the denial of the abatement but less than thirty days after the denial of the motion for rehearing, the plaintiff appealed both decisions to the supreme court under RSA 76:16-a V (Supp. 1975).
*777 I. The Statute of Limitations
The first issue in this case is whether the appeal from the denial of the abatement is untimely under RSA 76:16-a V (Supp. 1975) which states that “[e]ither party aggrieved by the decision of the board of taxation may, within thirty days after notice in writing of the decision of the board of taxation, file notice of appeal to the supreme court....” The problem is that the statute does not specify which decision of the board triggers the running of the thirty-day limitation. Relying upon the fact that RSA ch. 76 does not provide for rehearings in tax abatement cases and upon the policy of resolving tax disputes quickly, the town argues that the legislature intended the thirty-day limit in RSA 76:16-a V (Supp. 1975) to run from the date of the original decision on abatement. Under this reading, the September appeal from the July 17 decision denying abatement would be untimely and the only question before this court would be the propriety of the board’s refusal to grant a rehearing. See 2 F. Cooper, State Administrative Law 583 (1965).
RSA 71-BT2 (Supp. 1975) provides that decisions of the board of taxation are appealable only in accordance with the provisions of RSA ch. 541. Under RSA 541:3 a party aggrieved by an agency’s decision may apply for a rehearing, and under RSA 541:4 such application is a prerequisite to an appeal to this court. Because no statute excludes tax abatement proceedings from the blanket mandate of RSA 71-B:12 (Supp. 1975), the plaintiff argues that filing for a rehearing in accordance with RSA ch. 541 was proper and that “the” decision that must be appealed within thirty days under RSA 76:16-a V (Supp. 1975) is the denial of a rehearing or the decision after a rehearing is held.
In support of this position the plaintiff relies upon language in recent opinions. In
Paras v. Portsmouth,
Neither Paras nor Dartmouth addressed the distinctions raised here and thus the extent to which the plaintiff may justifiably rely upon them is somewhat limited. Nevertheless, the lack of clarity in the statutory scheme and in the cases created a procedural imbroglio which, in these unique circumstances, will not prevent consideration of the merits of plaintiffs case. The town strongly urges that, regardless of the outcome of this case, the court should take this opportunity to clarify the law so as to benefit both taxpayers and the board of taxation. Therefore, in order to comply with this request and prevent further confusion, the following procedural rules shall apply prospectively in all tax cases in which the board has not disposed of the petition for abatement as of thirty days after the date of this decision.
The party aggrieved by the board’s grant or denial of a tax abatement must appeal that decision within thirty days of the date of notice of the order, even though he requests a rehearing as hereinafter provided. RSA 76:16-a V (Supp. 1975). Under
Vickerry Realty Co. Trust v. Nashua,
If a party does desire a rehearing, some set of rules should control the application, disposition and appeal processes. We hold that, when a party aggrieved by the board of taxation’s decision on abatement applies for a rehearing, the board and the party must comply with the relevant provisions of RSA ch. 541. For the purposes of such rehearings, the twenty-day limit of RSA 541:3 will begin to run from the date of the written notice of the board’s decision. Thus, the thirty-day limit for appeals under RSA *779 76.T6-a V (Supp. 1975) and the twenty-day limit for rehearing petitions will commence concurrently. Within thirty days after the date of notice of the board’s decision to deny a rehearing, or if the application is granted, then within thirty days after the decision on such rehearing, the aggrieved party may appeal that order to the supreme court. RSA 541:6. If a rehearing is granted and the board does not change its decision, the aggrieved party may either appeal that second board decision within thirty days of the date of notice or, if his appeal from the board’s original decision is still pending before this court, he may file a supplemental brief stating his objections to the board’s post-rehearing decision. If, however, after rehearing, the board does alter its abatement decree, the party aggrieved by that change may appeal within thirty days after the date of written notice.
The board’s abatement ruling is, of course, analytically distinct from its decision whether to rehear a case. In the future we will adhere to this distinction by not considering, as we did in
Dartmouth,
the propriety of the abatement decision in an appeal from a denial of a rehearing. The scope of review over the abatement ruling is controlled by RSA 76:16-a V (Supp. 1975).
Dartmouth Corp. of Alpha Delta v. Hanover,
Under this scheme, an appeal from the abatement decision may be pending while the board considers whether to alter its order in some respect. Far from being anomalous as the plaintiff suggests, this situation was contemplated by the legislature, and RSA 541:16 provides an adequate solution to problems that might arise. Administrative reconsiderations of tax decisions will not postpone judicial review.
Missionaries of La Salette Corp. v. Enfield,
*780 II. The Merits
In estimating market value for the purposes of taxation, no single method of evaluation is controlling in all cases
(Dartmouth Corp. of Alpha Delta v. Hanover,
In its opinion denying a rehearing, the board intimated that the plaintiffs appraisal was unpersuasive. With this conclusion we cannot disagree. First, even though the taxes were for 1974 and the computation was made in 1975, the appraiser, without explanation, employed the net income for the year 1970. Second, he did not explain how he arrived at the 5.15 figure which he used in his computation. Third, he did not employ the capitalization of net income method correctly. The proper way to capitalize net income is to divide the net income by a capitalization factor, G. Lefcoe, Land Development Law, Cases and Materials 114 (1966), which is expressed as a percent.
See, e.g., Humble Oil Co. v. Englewood Cliffs,
The improper multiplication was not raised by the board but the plaintiff admits that his appraisal was inaccurate because 1970 income was used. He argues, however, that, even if he applied the formula correctly, the board would have rejected his appraisal as a matter of law. Several leases for space in the shopping center are long term and have become very unprofitable for the plaintiff due to changed economic conditions. Thus, the actual income derived from the property is less than capacity income. In its opinion denying an abatement, the board took the position that the market value of commercial rental property was based upon the capacity income the property could generate and not the actual income derived. Then it stated: “A long term lease for an unfavorable rent may impair the selling price but the valuation of the property for local taxation cannot vary with the managerial successes or failures of the owners.”
This rule of law was taken from the dissent in
Royal Gardens Co. v. Concord,
114 N.II. 668,
The majority did not disagree with the general rule stated by the dissent and relied upon by the board of taxation that, with respect to nonregulated privately owned commercial property, the general rule is that it is the capacity for earning income not actual income that reflects the fair cash value for the purpose of taxation.
Marine Bank v. Tax Appeal Bd.,
Although the plaintiffs evidence was properly rejected, we still cannot sustain the board’s decision because the record does not indicate what method was used to value the plaintiffs property nor how the board arrived at the two million dollar figure. Without fact findings we cannot determine whether the decision of the board was made in accordance with the law or whether the taxpayer sustained his burden of proving that the assessment on his property was disproportionately greater than that imposed upon other property in the area.
Trustees of Lexington Realty Trust v. Concord,
Remanded.