Alpha Portland Cement Co. v. Commonwealth

• Decision Date: 04 March 1924
• Citation: 142 N.E. 762,248 Mass. 156
• Parties: ALPHA PORTLAND CEMENT CO. v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

248 Mass. 156

142 N.E. 762

ALPHA PORTLAND CEMENT CO.

v.COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

March 4, 1924.

Petition from Supreme Judicial Court, Suffolk County.

Petition in equity by the Alpha Portland Cement Company against the Commonwealth to recover an excise alleged to have been exacted illegally. From a final decree dismissing the petition, the petitioner appeals. Petition dismissed.

L. H. Porter, of New York City, Howland Twombly, of Boston, and F. Carroll Taylor, of New York City (J. G. Palfrey, of Boston, of counsel), for petitioner.

Jay R. Benton, Atty. Gen., and Alexander Lincoln, Asst. Atty. Gen., for the Commonwealth.

RUGG, C. J.

This is a petition under G. L. c. 63, § 77, to recover an excise alleged to have been exacted from it illegally for the year 1922. This section of the statute enables a corporation to bring before this court the inquiry whether there has been a wrongful assessment of a tax or excise upon that which was not the proper subject of taxation. A corporation cannot by petition under this section cause inquiry to be made whether there has been an overvaluation of that which is rightly subject to the tax or excise, relief for wrong of that nature being afforded by G. L. c. 63, §§ 51, 71. Boston Manuf. Co. v. Commonwealth, 144 Mass. 598, 12 N. E. 362;Attorney General v. East Boston Co., 222 Mass. 450, 111 N. E. 167.

The petitioner is a corporation organized under the laws of New Jersey, engaged in business in this commonwealth. Its only tangible property within this commonwealth is office furniture of a value of $573. It conducts within this commonwealth, in the sale and delivery of cement and the maintenance of a sales force, an extensive business exclusively interstate in character. Its nature and extent are described in Alpha Portland Cement Co. v. Commonwealth, 244 Mass. 530, 139 N. E. 158, in substantially the same general terms as shown on this record and need not now be repeated.

The excise here assailed was levied under the provisions of G. L. c. 63, §§ 30 to 43, both inclusive, section 52, and St. 1921, c. 361. All these sections are printed in 244 Mass. 532 to 543, 139 N. E. 158, 164, and need not here be recited. It is provided by G. L. c. 63, § 47, that the commissioner of corporations and taxation ‘shall make from time to time such reasonable rules and regulations. consistent with sections thirty to fifty-one, inclusive, as he may deem necessary for carrying out their provisions.’ Pursuant to that mandate the commissioner made a general ruling of the following tenor:

‘2505. Ordinarily, such proportion of an intangible asset employed in business will be deemed to be employed in business within Massachusetts as that portion of the remainder of income allocable in Massachusetts under the provisions of section 19 of the act bears to the total of said remainder. If, however, because of the peculiar circumstances of any particular case such method of apportionment does not fairly reflect the proportion of an asset employed in business in Massachusetts, the corporation may submit its reasons for requesting determination by another method. The department also reserves the right in such cases to make the apportionment by another rule, even though the corporation does not request determination by another method; but in such event the corporation will be notified.’

The petitioner filed its return and made no request for determination by any other method. So far as this method affects valuation, it is not open to inquiry in this proceeding. The remedy for a wrong of that nature would be under sections 51, 71.

This statute in its application to the present petitioner was considered at length in Alpha Portland Cement Co. v. Commonwealth, 244 Mass. 530, 139 N. E. 158. The purpose of bringing the present petition respecting the excise levied for the year suceeding that under investigation in the earlier case apparently is to make certain the view of this court as to points thought by the petitioner not to have been fully developed there, in order that the Supreme Court of the United States on writ of review may have before it all aspects of the statute.

The method of calculation of the excise is set out with greater detail in the...