Taxation – Credit – Brownfields Act

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Where (1) a plaintiff sought a $15.3 million tax credit for the costs the plaintiff incurred to remediate three and one-quarter acres located at 145 Seaport Boulevard in Boston and (2) the Department of Revenue approved only a partial credit, the plaintiff’s motion for judgment on the pleadings should be allowed because the DOR exceeded its statutory authority under the Brownfields Act.

“Boston Seaport M1&2 Land LLC (Boston Seaport or Plaintiff) sued the Commissioner of Revenue after the Department of Revenue (DOR) refused to issue Boston Seaport a $15.3 million tax credit pursuant to the Brownfields Act and TaxCredit Statute (Brownfields Act), equaling fifty percent of the costs Boston Seaport incurred to remediate three and one-quarter acres located at 145 Seaport Boulevard in Boston (the Site). The DOR approved only a partial credit relying on a Licensed Site Professional (LSP) the DOR hired, years after the remediation and development, to evaluate what work was necessary to achieve a ‘permanent solution’ pursuant to G.L.c. 21E (Chapter 21E).

“Boston Seaport asserts two claims — for declaratory relief and certiorari review pursuant to G.L.c. 249, §4. It argues that it is entitled to a tax credit of fifty percent of the entire net costs it incurred in its Chapter 21E cleanup efforts, and that the DOR may not impose its judgment of the remediation work necessary to achieve a permanent solution in contravention of the Brownfields Act which places that judgment on Boston Seaport’s LSP-of-Record and the Department of Environmental Protection (DEP). …

“The principal question before me is whether the DOR, in administering the Brownfields tax credit, is foreclosed from analyzing, assessing, challenging and ultimately reaching its own conclusion about whether the costs incurred and for which a developer seeks a tax credit were ‘for the purpose of achieving a permanent solution.’ …

“Boston Seaport argues that the DOR is bound by Abodez Acorn CW LLC v. Commissioner of Revenue, No. 2016-1238-H, slip op. (Mass. Super. Nov. 20, 2017), in which the Court (Wilkins, J.) construed the Brownfields Act and held that the DOR was bound by the LSP-of-Record’s determination of the amount of excavation necessary for remediation because ‘the Legislature likely intended for the DEP filings to fix the activities for which expenditures qualify for the tax deductions.’ …

“… I hold that it is inappropriate to apply nonmutual collateral estoppel to the Commonwealth in the circumstances presented here. The uniqueness of the government as a litigant compels this conclusion. Application of the doctrine would freeze the development of the law, force the government to take appeals in cases it otherwise would not simply to avoid the doctrine (and thereby swell the time and expense of litigation beyond what the immediate case prudently warrants), and impede differing policy choices and priorities of successive administrations. …

“My conclusion that the DOR is not collaterally estopped by Abodez does not end the analysis. I must now determine whether the DOR has the statutory authority to itself investigate environmental matters, down to the level of determining the nature of the contamination of the soil at redevelopment sites, to reach its own determination of the costs that were necessary to achieve a permanent solution consistent with Chapter 21E and the MCP. I conclude that the Legislature has not granted that authority to the DOR. I also conclude that the DOR’s assertion of that power undercuts the policy and purpose of the Brownfields Act and the Commonwealth’s excruciatingly detailed laws and regulations governing environmental remediation. …

“For the reasons stated, Plaintiff’s Motion for Judgment on the Pleadings is allowed. Defendant’s Cross-Motion for Judgement on the Pleadings is denied. Judgment shall enter for the Plaintiff. Further, in connection with the Plaintiff’s request for declaratory relief:

“I hereby declare that the Department of Revenue does not have the statutory authority to substitute its judgment for the judgment of the LSP-of-Record concerning the scope of the environmental remediation necessary to achieve a permanent solution and instead is bound by the LSP-of-Record’s determination of necessary remediation activities as described in their DEP filings.

“I further hereby declare Plaintiff is entitled to a Brownfields tax credit pursuant to G.L.c. 62, §6(j) for net response and removal costs in the amount of $30,694,593.”

Boston Seaport M1&2 Land, LLC v. Commissioner of Revenue (Lawyers Weekly No. 09-001-26) (31 pages) (Squires-Lee, J.) (Suffolk Superior Court) (Civil Action No. 2584-CV-00039-BLS2) (Jan. 20, 2026).

Click here to read the full text of the opinion.