New Hampshire Supreme Court Rejects “Spot” Assessing
In a prolonged dispute between Merrimack Premium Outlets, LLC and the Town of Merrimack, the New Hampshire Supreme Court issued two key rulings, one a 2021 opinion and another a 2025 order. Together, the rulings confirm that municipalities may not reassess individual properties between town-wide revaluations unless the property undergoes a physical, zoning, ownership or other change affecting its value.
Background
Generally speaking, New Hampshire municipalities must reappraise all real estate at full and true market value at least once every five years. Once it does so, the municipality may not change the assessment unless the property undergoes a physical, zoning, ownership or other change affecting its value.
In 2016, the Town of Merrimack conducted a full revaluation of all taxable property. The town assessed Merrimack Premium Outlets’ property at roughly $86.5 million. Later that year, the town discovered the property had secured a commercial loan in 2013 using a valuation of $220 million. Convinced it had undervalued the property, the town increased the assessment in 2017 to approximately $154.1 million.
Merrimack Premium Outlets sued, alleging the town had no authority to reassess the property without a qualifying change and had not reassessed similarly situated retail properties, effectively engaging in unlawful spot assessing.
Supreme Court’s 2021 Decision
In Merrimack Premium Outlets, LLC v. Town of Merrimack, 174 N.H. 481 (2021), the Supreme Court sided with the taxpayer. The Court ruled RSA 75:8 allows municipalities to adjust property assessments between revaluations only when the property undergoes a physical, zoning, ownership or other change affecting its value. A reassessment based on newly discovered information, without any actual change to the property itself, falls outside the statute.
The Court rejected the town’s argument it could correct a prior mistake. The Court emphasized the structure of New Hampshire’s tax statutes, which rely on five-year revaluation cycles and allow interim adjustments only in limited, fact-specific circumstances. The town had no authority to revise the assessment simply because it believed the 2016 number was too low. The Court reversed the trial court’s ruling and remanded the case.
Proceedings After Remand and the 2025 Order
After the remand, the taxpayer moved for summary judgment covering tax years 2017 through 2020. It sought a refund of the excess taxes it had paid due to the unauthorized reassessment, along with interest.
The trial court declined to issue a final order, pointing to procedural confusion in the consolidated dockets and uncertainty over which claims remained. The court instructed the taxpayer to file a single consolidated amended complaint, which it did, asserting a statutory claim and an equal protection claim. The town moved to dismiss both.
The trial court granted the town’s motion. It concluded RSA 75:8 does not create a private right of action and the Supreme Court’s earlier ruling had already provided the declaratory relief the taxpayer sought. The court dismissed the equal protection claim, reasoning the abatement process offered an adequate remedy and the taxpayer had not alleged enough facts for a federal claim under the federal statute governing such actions, 42 U.S.C. § 1983.
Supreme Court’s 2025 Ruling
The Supreme Court agreed its 2021 decision conclusively determined the 2017 reassessment was unauthorized; however, the trial court still needed to make factual findings about how much tax the taxpayer paid under the unlawful assessment. The Court explained that a motion for summary judgment—not a motion for final order—provided the proper procedural tool.
The Court then turned to the statutory claim. It clarified that the taxpayer did not rely on a private right of action under RSA 75:8. Instead, the taxpayer claimed the town had no legal authority to impose the tax in the first place. That allegation, the Court held, stated a valid claim. The Court reaffirmed a core principle of New Hampshire tax law: municipalities cannot impose taxes unless a statute expressly authorizes the assessment.
The Court rejected the town’s position that the taxpayer should have followed the abatement process. When a taxpayer challenges the legality of the assessment itself - not its proportionality - the taxpayer need not file for an abatement. The Court cited Pheasant Lane Realty Trust v. City of Nashua, 143 N.H. 140 (1998), which involved a similar reassessment based on newly acquired information. In that case, as here, the court allowed the taxpayer to proceed without first seeking an abatement.
The Court also declined to address the equal protection claim, noting the statutory ruling gave the taxpayer an adequate path to relief.
Conclusion
The good news for taxpayers is New Hampshire’s Supreme Court will interpret taxpayer filings with some flexibility to provide the opportunity for relief. Even so, taxpayers should state their claims clearly, completely, and with careful attention to each tax year involved. A well-drafted complaint remains the most reliable way to avoid procedural setbacks and obtain relief.
For assistance with real estate tax abatements, civil litigation or real estate matters, please contact Alfano Law at (603) 856-8411 or by filling out our Contact Form. The firm offers free or low-cost initial consultations for most matters.