The abatement procedures outlined in RSA 79-A:10 may not be the sole remedy for an aggrieved taxpayer if there is a question of law surrounding the issuance of the land use change tax in the first place.

In June of 2021, McMaster Development, LLC purchased three building lots from Nikko Land LLC. The three lots were previously part of a parcel subject to current use taxation, which Nikko received approval to subdivide. McMaster built homes on each lot and sole each lot to separate third parties. The town assessed a Land Use Change Tax for each lot and mailed a $15,000 invoice to the new owners. McMaster paid the invoices under protest and argued that the tax was untimely assessed as it took place more than 18 months after receiving the notice of sale of the lots from Nikko to McMaster. McMaster filed three abatement applications. The town denied the abatements with no notice and informed McMaster later, upon inquiry by McMaster, that the appeal period had expired. When McMaster tried to appeal, the lower court dismissed the case stating that the appeal period had expired. 

McMaster further appealed arguing that they are not denying that the appeal period expired for seeking relief under the abatement process, but rather, they are arguing that the town’s original issuance of the LUCT was illegal in the first place due to the town failing to meet the 18-month deadline. The court concluded that this question could move forward, as the abatement procedures in RSA 79-A:10 do not provide the sole available remedy under these circumstances.

In the past, the Court has described compliance with the statutory appeal deadline contained within the abatement statutes as a “necessary prerequisite” to establishing jurisdiction over a tax abatement appeal. However, there may be other remedies available where the issue on appeal is a question of law rather than a question of the exercise of administrative discretion. As previously established in Pheasant Lane, 143 N.H. and Porter, 153 N.H., a plaintiff raising a question of law is not necessarily required to follow the statutorily prescribed abatement procedure. In the context of this case, it is a question of law in determining whether the change in use date, or some other operative date triggers the beginning of the 18-month period in which a municipality has the authority to mail a LUCT assessment. Consequently, McMaster was not required to appeal the town’s neglect to decide its abatement request as its sole remedy. McMaster could still challenge the legality of the issuance of the tax in the first place.  

*This is a Final Order issued by the Supreme Court that disposes of a case that has been briefed but in which no opinion is issued. Although this Final Order has no precedential value, it does provide helpful guidance for municipal officials.

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