E.B. Horn Co. v. Assessors of Boston

• Decision Date: 24 July 1947
• Citation: 321 Mass. 579,74 N.E.2d 421
• Parties: E. B. HORN CO. v. ASSESSORS OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

321 Mass. 579

74 N.E.2d 421

E. B. HORN CO.

v.ASSESSORS OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

July 24, 1947.

Appeal from Appellate Tax Board.

Proceeding by the E. B. Horn Company against the Assessors of Boston for abatement of real estate tax for the year 1945. From a decision of the Appellate Tax Board dismissing, as not seasonably filed, an appeal by the taxpayer from the refusal of the Board of Assessors to abate the tax, the taxpayer appeals.

Appeal dismissed.

Before LUMMUS, RONAN, WILKINS, and SPALDING, JJ.

E. H. Hewitt, of Boston, for taxpayer.

O. F. Brock, Asst. Corp. Counsel, of Boston, for assessors.

WILKINS, Justice.

This is an appeal by the taxpayer from a decision of the Appellate Tax Board dismissing as not seasonably filed, an appeal from the refusal of the board of assessors of the city of Boston to abate a real estate tax for the year 1945. On January 1, 1945, the taxpayer, a lessee, was obligated under the lease to pay the tax assessed as of that date. On September 25, 1945, the taxpayer duly applied for an abatement to the assessors. G.L.(Ter.Ed.) c. 59, § 59, as appearing in St.1939, c. 250, § 1, and as amended by St.1945, c. 621, § 4. The assessors failed to act upon the application. The tax was paid on December 19, 1945. The foregoing facts appear from the appeal filed with the Appellate Tax Board on April 3, 1946.

The question for determination is whether St.1945, c. 621, effective October 15, 1945,¹ amending various sections of G.L. c. 58A and c. 59, as previously amended, fixed the time for the taxpayer's appeal from the denial of its application for abatement, the application having been filed with the assessors prior to that date. The taxpayer contends that that statute did not control, and that the governing statutes were those in effect on the filing of its application. General Laws (Ter.Ed.) c. 58A, § 6, as appearing in St. 1938, c. 478, § 4, read in part: ‘The [Appellate Tax] board shall have jurisdiction to decide appeals under the provisions of * * * sections * * * sixty-four, sixty-five * * * of said chapter fifty-nine * * *. Whenever * * * a board of assessors, before * * * which an application in writing for the abatement of a tax is or shall be pending, fails to act upon said application, except with the written consent of the applicant, prior to the expiration of four months from the date of filing of such application, it shall then be deemed to be denied and the taxpayer shall have the right, at any time within ninety days after the expiration of said four months, to take any appeal from such denial to which he may be entitled by law, in the same manner as though the * * * board of assessors had in fact refused to grant the abatement applied for. After the expiration of said four months * * * the board of assessors shall have no further authority to act upon said application * * *.’ By St.1945, c. 621, § 1, the italicized words were omitted, and others substituted which (1) reduced from four to three months the period for which inaction by the assessors became the equivalent of formal denial and after which they had no further authority to act upon the application, and (2) changed the appeal period from ‘ninety days after the expiration of said four months' to ‘three months thereafter.'²

On the date of filing the application, G.L. (Ter.Ed.) c. 59, § 65, as appearing in St.1939, c. 31, § 7, which, as well as G.L. (Ter.Ed.) c. 58A, § 6, related to an appeal to the Appellate Tax Board, so far as material, read: ‘A person aggrieved as aforesaid with respect to a tax on property in any municipality may, subject to the same conditions provided for an appeal under section sixty-four, appeal to the appellate tax board by filing a petition with such board * * * within ninety days [italics supplied] after the time when the application for abatement is deemed to be refused as provided in section sixty-four.’ By St. 1945, c. 621, § 6, ‘ninety days' was changed to ‘three months.'³

If the taxpayer's contention is correct, the time for appeal to the Appellate Tax Board expired April 25, 1946, ninety days following four months from September 25, 1945, the date of filing the application for abatement. If the assessors' contention in support of the action of the Appellate Tax Board dismissing the appeal is correct, the time expired March 25, 1946, three months following three months from September 25, 1945. As previously noted, the appeal was filed April 3, 1946.

Sections 64 and 65 of G.L. (Ter.Ed.) c. 59 are in form procedural, do not affect the substantive right of the taxpayer to be assessed upon ‘a fair cash valuation’ of his taxable real and personal estate under c. 59, § 38, and purport merely to prescribe the conditions under which an abatement may be granted if he is found to be ‘'taxed at more than his just proportion, or upon an assessment of any of his property in excess of its fair cash value.’ G.L. (Ter.Ed.) c. 59, § 59.' Wynn v. Assessors of Boston, 281 Mass. 245, 247, 248, 183 N.E. 528, 529. The statutory proceedings for abatement are the exclusive remedy for overassessment of real or personal property. Codman v. Assessors of Westwood, 309 Mass. 433, 435, 35 N.E.2d 262, and cases cited; Old Colony Railroad v. Assessors of Boston, 309 Mass. 439, 442, 35 N.E.2d 246. Commencement of such proceedings by an application in conformity with the statute is a prerequisite to jurisdiction in the Appellate Tax Board. Board of Assessors of Boston v. Suffolk Law School, 295 Mass. 489, 492, 4 N.E.2d 342;Old Colony Railroad v. Assessors of Quincy, 305 Mass. 509, 511, 512, 26 N.E.2d 313;Boston Five Cents Savings Bank v. Assessors of Boston, 311 Mass. 415, 416, 41 N.E.2d 283.

The principal effects of St.1945, c. 621, §§ 1, 5, and 6, were twofold. The first was to limit the jurisdiction of the assessors so as to allow them but three months, instead of four, to act upon any application for abatement before losing ‘authority to act.’ The second was to increase from ninety days to three months time for the taxpayer to appeal to the Appellate Tax Board. See McRae v. New York, New Haven & Hartford Railroad, 199 Mass. 418, 419, 420, 85 N.E. 425,15 Ann.Cas. 489.

The taxpayer urges that as a matter of interpretation the new statute should apply only to applications filed after its effective date. The statute, however, is couched in general terms, and contains no exceptions. See New England Trust Co. v. Assessors of Boston, 308 Mass. 543, 544, 33 N.E.2d 268. It is not ambiguous or doubtful. See Boston Five Cents Savings Bank v. Assessors of Boston, 317 Mass. 694, 702, 703, 59 N.E.2d 454. We find in it no language permitting the introduction of such an exception. Had the Legislature so intended, a distinction would have been easy to express. See, for example, G.L. (Ter.Ed.) c. 59, § 59, as previously amended, and as amended by St.1946, c. 199, § 1; St.1946, c. 199, § 2.

The Legislature in failing to exclude from the operation of St.1945, c. 621, a case like the present, was not seeking to place an undue burden upon the taxpayer, but on the contrary was aiming to benefit him by shortening the period of delay due to inaction of assessors. ‘It was the intention of the Legislature by these provisions, not to excuse the * * * boards of assessors from the performance of duties, but rather to provide an adequate remedy at law in the event that * * * [they] did fail to perform them within a fixed time.’ Eastern Racing Association v. Assessors of Revere, 300 Mass. 578, 582, 16 N.E.2d 64, 67;Board of Assessors of Brookline v. Prudential Ins. Co., 310 Mass. 300, 309, 38 N.E.2d 145. The resulting situation upon filing...