Michael A. Balmuth et al.
David E. Dolce, in his capacity as Tax Assessor for the Town of Portsmouth. John Qua et al.
David E. Dolce, in his capacity as Tax Assessor for the Town of Portsmouth. William Antle
David E. Dolce, in his capacity as Tax Assessor for the Town of Portsmouth.
Newport County Superior Court (NC 10-296), (NC 10-298), (NC
11-127), (NC 10-299), (NC 11-131), Associate Justice Walter
Plaintiffs: Michael J. Richards, Esq. Brian G. Bardorf, Esq.
Mark B. Bardorf, Esq.
Defendant: Kevin P. Gavin, Esq.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
tax me, Tax that fellow behind the
defendant, who is the tax assessor for the Town of
Portsmouth,  appeals from a judgment of the Superior
Court in favor of the plaintiffs, a group of Portsmouth
taxpayers who had challenged the defendant's tax
assessments on their properties for tax years 2009 and 2010.
These cases come to us in the wake of what is considered
generally to be the worst economic downturn since the Great
Depression. It is common knowledge that in 2008 the stock
market plummeted, and with it the value of real estate
throughout the country tumbled as well. It also is well known
that Rhode Island was not immune from the effects of that
economic collapse. Indeed, as both the plaintiffs and the
defendant agree, the value of the plaintiffs' properties
decreased in 2008 and 2009. This appeal, though, is not a
contest about the value of the plaintiffs' properties.
Rather, this appeal is about whether certain sections of G.L.
1956 chapter 5 of title 44 require the plaintiffs to base
their tax appeals on the fair market value of their
properties "as of December 31 in the year of the last
update or revaluation * * *."
the plaintiffs appealed their assessments for tax years 2009
and 2010, the defendant maintained that they were locked in
to the value of their properties as of December 31, 2007, the
year of Portsmouth's last revaluation. The plaintiffs,
whose properties had experienced a substantial decline in
value after December 31, 2007, disagree. After a nonjury
trial based on an agreed statement of facts, the trial
justice concluded that, based on the language set forth in
the pertinent sections of chapter 5 of title 44, the
plaintiffs were not "locked in" to the values of
their properties as of December 31, 2007. Put another way,
the trial justice decided that the plaintiffs were authorized
under the law to challenge the defendant's assessments
for tax years 2009 and 2010 by employing the fair market
values of their properties as of December 31, 2008 and
December 31, 2009, respectively. We agree. Accordingly, for
the reasons set forth in this opinion, we affirm the judgment
of the Superior Court.
Facts and Travel
facts here are undisputed and straightforward. The plaintiffs
all own property in the Town of Portsmouth. More
specifically, each of the plaintiffs owns a condominium in
the same development. In 2007, consistent with his statutory
duties as the tax assessor for Portsmouth, defendant
conducted a full-scale revaluation of all real estate in the
town, including plaintiffs' properties. The defendant
determined that, as of December 31, 2007, the full and fair
cash values of plaintiffs' properties were as
follows: the Balmuth Property, $4, 430, 200; the Qua
Property, $5, 320, 800; and the Antle Property, $4, 076, 500.
in 2008, the economy cratered. There is no question that real
estate values were adversely affected by the downturn.
Nevertheless, as he was permitted to do, for his assessment
for tax year 2009, defendant carried forward the December 31,
2007 valuations of plaintiffs' properties. For tax year
2010, he did the same. Thus, for tax years 2009 and 2010,
defendant assessed plaintiffs' property taxes based on
the fair market values of those properties as of December 31,
as of December 31, 2008-the date of assessment for tax year
2009-and December 31, 2009-the date of assessment for tax
year 2010-the fair market values of plaintiffs'
properties had decreased. As of December 31, 2008, the
parties stipulate that the fair market values of
plaintiffs' properties were as follows: the Balmuth
Property, $4, 107, 333; the Qua Property, $4, 788, 720; and
the Antle Property, $3, 668, 850. As of December 31, 2009,
the fair market values of plaintiffs' properties were as
follows: the Qua Property, $4, 256, 640; and the Antle
Property, $3, 261, 200.
plaintiffs sought review of those assessments on the ground
that they had been overtaxed for tax years 2009 and
2010. Following the procedure set forth in
§ 44-5-26(a), plaintiffs first appealed to defendant. He
denied their appeals, informing plaintiffs that, under
chapter 5 of title 44, he had properly carried forward the
December 31, 2007 valuations for use in determining his
assessments for tax years 2009 and 2010. The plaintiffs then
appealed to the Portsmouth Tax Assessment Board of Review,
where they were again denied relief. Still unsatisfied,
plaintiffs then petitioned for relief in the Superior Court.
the course of several years, plaintiffs' tax appeal cases
were consolidated as they wound their way through the normal
course of litigation. Ultimately, after the parties submitted
an agreed statement of facts, a justice of the Superior Court
granted plaintiffs the relief for which they had petitioned.
The trial justice found that plaintiffs could challenge
defendant's tax assessments for tax years 2009 and 2010
using the fair market values of their properties as of
December 31, 2008 and December 31, 2009, respectively. He
concluded that, contrary to defendant's interpretation of
the language set forth in §§ 44-5-15 and 44-5-26
(language we will discuss infra), plaintiffs were
not confined to the December 31, 2007 valuations. The trial
justice reasoned that, under § 44-5-30, plaintiffs had
satisfied the preconditions necessary to prevail on their tax
appeals. Citing § 44-5-30, he wrote:
"For judgment to enter in favor of the taxpayer
challenging [a] property tax assessment, the taxpayer must
demonstrate: (1) that an account has been given; (2) that the
tax has been assessed in excess of the property's full
and fair cash value; and (3) that the taxes on the property
have been paid prior to judgment entering."
44-5-30 provides, in pertinent part, that:
"If the taxpayer has given in an account, and if on the
trial of the petition, either with or without a jury, it
appears that the taxpayer's real estate * * * has been
assessed * * * at a value in excess of its full and fair cash
value, * * * the court shall give judgment that the sum by
which the taxpayer has been so overtaxed, * * * with his or
her costs, be deducted from his or her tax * * *."
on the use of "shall" in that statute, the trial
justice determined that he was bound to enter judgment in
plaintiffs' favor because they had satisfied their burden
under § 44-5-30. He explained that defendant had even
conceded as much, in that there was no dispute that
plaintiffs had (1) given an account; (2) been assessed taxes
in excess of their properties' full and fair cash value
for tax years 2009 and 2010; and (3) timely paid their taxes
for tax years 2009 and 2010. Accordingly, a judgment entered
in plaintiffs' favor.
defendant timely appealed, posing to this Court a single
question of statutory interpretation: whether, pursuant to
chapter 5 of title 44, plaintiffs were locked in to the fair
market valuations of their properties as of December 31,
2007, when they appealed defendant's assessments for tax
years 2009 and 2010.
Standard of Review
Court reviews questions of statutory interpretation de
novo. Whittemore v. Thompson, 139 A.3d 530, 540
(R.I. 2016). When we are confronted with a statute that is
clear and unambiguous, we "must interpret the statute
literally and must give the words of the statute their plain
and ordinary meanings." Id. (quoting
Cummings v. Shorey, 761 A.2d 680, 684 (R.I. 2000)).
If, however, we are presented with an ambiguous statute-one
that contains "a word or phrase * * * susceptible of
more than one reasonable meaning[, ]" Drs. Pass and
Bertherman, Inc. v. Neighborhood Health Plan of Rhode
Island, 31 A.3d 1263, 1269 (R.I. 2011)-then "this
Court will 'employ our well-established maxims of
statutory construction in an effort to glean the intent of
the Legislature.'" In re Proposed Town of New
Shoreham Project, 25 A.3d 482, 505 (R.I. 2011) (quoting
Town of Burrillville v. Pascoag Apartment Associates,
LLC, 950 A.2d 435, 445 (R.I. 2008)).
state's statutory scheme for local taxation begins with
§ 44-5-1, which vests in cities and towns the power to
tax. Under § 44-5-1, "[t]he tax is apportioned upon
the assessed valuations as determined by the assessors of the
city or town as of December 31 in each year at 12:00 A.M.
midnight, the date being known as the date of assessment of
city or town valuations." Pursuant to § 44-5-13,
"[t]he assessors shall assess all valuation and
apportion any tax levy on the inhabitants of the city or town
and the ratable property in the city or town according to
law, and the assessed valuation of the ratable property is
made as of the date of assessment provided in §
44-5-1[.]" "All real property subject to
taxation shall be assessed at its full and fair cash value,
or at a uniform percentage of its value, not to exceed one
hundred percent (100%), to be determined by the assessors in
each town or city * * *." Section 44-5-12(a). With
respect to real estate in particular, "[t]he assessors
shall make a list containing the true, full, and fair cash
value * * * as defined in § 44-5-12 * * * of the
ratable estate in the city or town, placing the real estate
[and other assets] in separate columns * * *." Section
assessing any valuations, though, the tax assessors of all
the cities and towns must comply with the notice provisions
set forth in § 44-5-15. Section 44-5-15 also requires the
annual filing of an account by a taxpayer:
"The notices require every person and body corporate
liable to taxation to bring in to the assessors at the time
they may prescribe a true and exact account of all the
ratable estate owned or possessed by that person or body,
describing and specifying the value of every parcel of the
real estate as of December 31 in the year of the last
update or revaluation and personal estate as of December
31 of the tax year * * *." (Emphasis added.)
account required under § 44-5-15 is a pillar of our
local taxation structure; it must be made under oath, and it
serves as a condition precedent to appealing a tax
assessment. Section 44-5-16(a); Whittemore, 139 A.3d
at 547. Furthermore, as prescribed by § 44-5-17,
"[i]f any person brings in an account as provided in
§ 44-5-15, the assessors shall nevertheless assess the
person's ratable estate at what they deem its full and
fair cash value * * *."
a taxpayer seeking to appeal a tax assessment with which he
or she is dissatisfied has an exclusive statutory remedy to
do so. As § 44-5-27 instructs, that remedy is provided
in § 44-5-26. Under § 44-5-26(a), "[a]ny
person aggrieved on any ground whatsoever by any assessment
of taxes against him or her in any city or town * * * may
within ninety (90) days from the date the first tax payment
is due, file an appeal in the local office of tax assessment
* * *." From the local office of tax assessment, the
aggrieved taxpayer may appeal to the local tax board of
review and then, if still dissatisfied, file a petition for
review in the Superior Court. Sections 44-5-26(a) and (b). In
addition to setting forth the procedural and timing
requirements required to perfect a tax appeal, § 44-5-26
further directs that "[a]ppeals to the local office of
tax assessment are to be on an application[, ]" and that
"[t]he application shall be in" a particular form.
Section 44-5-26(b); see Appendix. Contained in that
form are two provisions that are of significance to
defendant's position in this appeal. See §
included in the form under the heading "REASON(S)
REDUCTION SOUGHT" is a space in which an aggrieved
taxpayer can list his or her property's "Fair Market
Value (as ofDecember 31 in the year of the last
update or revaluation for real estate and as of December
31 of the tax year for personal estate * * *)[.]"
(Emphasis added.) Next, below the form's signature block
and under the heading "TAXPAYER ...