Bartlett v. Fufts

• Decision Date: 07 March 1922
• Parties: BARTLETT, Tax Collector, v. FUFTS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

241 Mass. 96

134 N.E. 630

BARTLETT, Tax Collector,

v.FUFTS.

Supreme Judicial Court of Massachusetts, Suffolk.

March 7, 1922.

Appeal from Superior Court, Suffolk County; Marcus Morton, Judge.

Action by Harold C. Bartlett, Collector of Taxes for the Town of Winthrop, against Margaret K. Tufts, for the amount of a tax assessed as of April 1, 1916, on the poll and property of Henry P. Tufts of whose estate defendant was executrix. The court found for plaintiff, and defendant appeals. Reversed, and judgment entered for defendant.

An omitted or late assessment was made on December 20, 1916, as of April 1, 1916, for the personal property which is the subject of the action. Henry P. Tufts died May 15, 1916, and the executrix was appointed on July 15 and qualified by giving bond. On December 20, 1916, a bill for the tax was made out to Henry P. Tufts and mailed to his last address. On January 1, 1918, a demand addressed to Henry P. Tufts was also mailed to such address. On March 18, 1919, plaintiff sent the defendant executrix a letter stating that the tax bill was inclosed, that payment was thereby demanded, that interest at the rate of 6 per cent. per annum would be charged from December 31, 1916, and that unless the tax was paid within 14 days with all legal charges, the collector would proceed to collect it according to law. On January 21, 1919, attorneys representing defendant wrote the board of assessors complaining that Mr. Tufts was assessed twice on his interest in a partnership and asking an opportunity to explain the situation to the board. In reply the board stated that it had only done its duty as required by statute and that the only alternative was the acceptance from the executrix of a sworn return of the financial status of Henry P. Tufts as of April 1, 1916, and that this the board voted not to do.Francis Juggins, of Boston, and Ralph E. Evans, of East Boston, for appellant.

Leon C. Guptill, Town Sol., of Boston, for appellee.

BRALEY, J.

We assume that before laying the assessment the assessors complied with the requirements of St. 1909, c. 490, pt. 1, § 41, by seasonably giving notice ‘to all persons, firms and corporations domestic or foreign, subject to taxation’ in the town to bring in to the assessors ‘before a date therein designated, in case of residents a true list of all their personal estate in that * * * town not exempt from taxation.’ The defendant's testator, a resident of the town who died May 15, 1916, made no return of his taxable property, and was assessed as of April 1, 1916, for a poll tax and a tax on real property which after demand was paid by the executrix October 11, 1916. St. 1909, c. 490, pt. 2. § 34. But the inventory filed in the court of probate having disclosed certain personal property which had been omitted from the annual assessment, the assessors acting under St. 1909, c. 490, pt. 1, § 85, as amended by St. 1911, c. 89, levied on December 20, 1916, a tax on this property to recover the amount of which this action is brought.

The testator doubtless was liable to be taxed for the money on deposit, and on the jewelry, although his interest in a partnership outside of, and without a place of business in the town, was not taxable. St. 1909, c. 490, pt. 1, § 4, cl. 1, and section 27. The tax, however, is not to be regarded as a separate tax. It is part of the original tax levied as of April 1, 1916, when the testator was living, the items of which were then unknown to the assessors. Harwood v. North Brookfield, 130 Mass. 561, 565. It was properly assessable to Henry P. Tufts and could not lawfully have been assessed to his estate. Noyes v. Hale, 137 Mass. 266; St. 1909, c. 490, pt. 1, § 85.

It may fairly be assumed on the record that a tax list and warrant were delivered to the plaintiff to collect the tax as first levied, and it is immaterial after the omitted assessment was imposed, whether the tax was to be collected under that warrant, or whether a new warrant therefor was issued. Noyes v. Hale, 137 Mass. 266; St. 1909, c. 490, pt. 1, § 85, as amended by St. 1911, c. 89.

By section 3 of part 2, the plaintiff was required to send notice to the person assessed, ‘of the amount of his tax’ directed to the street and number of his residence if possible. The notice mailed to the testator after his death as well as the alleged demand on him was a nullity. The notice should have been sent to the executrix. But under the statute:

‘An omission to send notice shall not affect either the validity of a tax, or of the proceedings for collecting it.’

The warrant issued by the plaintiff to a constable of the town who made ‘numerous demands' on the defendant, was also of no effect because the collector could not issue such warrant before a lawful demand for payment of the tax had been made on her. St. 1909, c. 490, pt. 2, § 32. But the demand of March 18, 1919, made by the plaintiff was sufficient.

It is settled that the assessors had jurisdiction to assess a tax on the testator's money deposited in a national bank and on his jewelry, and his failure to file a list of his taxable property would have deprived him of any right to an abatement which was the only remedy for so much of the tax as had been assessed on his...