Bd. of Assessors of Town of Brookline v. Prudential Ins. Co. of America

• Citation: 310 Mass. 300,38 N.E.2d 145
• Parties: BOARD OF ASSESSORS OF TOWN OF BROOKLINE v. PRUDENTIAL INS. CO. OF AMERICA.
• Decision Date: 25 November 1941
• Court: United States State Supreme Judicial Court of Massachusetts

310 Mass. 300

38 N.E.2d 145

BOARD OF ASSESSORS OF TOWN OF BROOKLINE

v.PRUDENTIAL INS. CO. OF AMERICA.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 25, 1941.

Appeal from Supreme Judicial Court, Suffolk County.

Applications by the Prudential Insurance Company of America to the Board of Assessors of the Town of Brookline for an abatement of the tax assessed on each of eleven parcels of realty. A partial abatement of the tax on each parcel was granted, and the company claiming further abatements appealed to the Board of Tax Appeals, now the Appellate Tax Board, and the Board of Assessors moved to dismiss the appeals. From a decision of the Appellate Tax Board denying the motion and granting furthwr abatements, the Board of Assessors of the Town of Brookline appeals.

Decision approved, and abatement granted in accordance with decision.

Argued before FIELD, C. J., and QUA, DOLAN, and COX, JJ.R. I. Hunneman, of Boston, for assessors.

J. I. Berns, of Boston, for taxpayer.

FIELD, Chief Justice.

Eleven parcels of real estate in the town of Brookline were assessed to the Prudential Insurance Company of America, herein referred to as the taxpayer, as of January 1, 1936. The taxpayer applied to the assessors for an abatement of the tax assessed upon each of those parcels, and a partial abatement of the tax on each parcel was granted by the assessors. The taxpayer, claiming further abatements, appealed to the Board of Tax Appeals-now the Appellate Tax Board to which the jurisdiction of the former board was transferred by statute. G.L. (Tel.Ed.) c. 59, § 65, as amended. G.L.(Ter.Ed) c. 58A, as amended. St.1937, c. 400. See section 4.

The assessors moved to dismiss the taxpayer's appeals ‘on the ground that the Appellate Tax Board has no jurisdiction, since the appellant's purported applications for abatement, copies of which are hereto annexed, are not applications ‘in writing to the assessors, on a form approved by the commissioner, for an abatement’ of the taxes assessed as required by G.L. (Ter.Ed.) c. 59, § 59.' See said section as appearing in St.1933, c. 266, § 1, and amended by St.1935, c. 187, § 1. See now St.1939, c. 250, § 1. The Appellate Tax Board found the facts relating to this motion, denied the motion, and granted further abatements. The assessors appealed from the decision of the Appellate Tax Board. G.L. (Ter.Ed.) c. 58A, § 13, as amended.

The only question presented by the appeal is whether the assessors' motion to dismiss the appeals of the taxpayer from the decision of the assessors was denied rightly.

1. General Laws (Ter.Ed.) c. 59, § 59, as amended, see St.1935, c. 187, § 1, provided, at the time the taxpayer applied for abatement, that a ‘person aggrieved by the tax assessed upon him may, on or before October first of the year to which the tax relates, apply in writing to the assessors, on a form approved by the commissioner [this is, the tax commissioner], for an abatement thereof,’ with provisions regarding the actions of the assessors upon such an application. The Appellate Tax Board found with respect to the applications, for abatements by the taxpayer-and its findings of fact are final unless vitiated by error of law, G.L. (Ter.Ed.) c. 58A, § 13, as amended,-that the ‘form of application approved by the commissioner was used and the following information was given: name of applicant; post office address; name of person assessed; location of property; total assessed valuation; applicant's estimate of the fair cash value; a statement that the present owner had an interest in or lien upon the property previous to acquiring title; class of building; number of stories; number of apartments; a statement that the property is rented; the amount of total rentals if fully rented; and a statement of the gross rental for the twelve months preceding the assessment date. No other questions on the application forms were answered.’ Copies of the applications for abatement made to the assessors by the taxpayer are contained in the record as required by G.L. (Ter.Ed.) c. 58A, § 13, as amended. The questions on the application forms, as disclosed by these copies of the applications, that were not answered are set out in a footnote.¹

The part of the record that is entitled ‘Opinion’ contains a statement of the board that ‘We hold that the applications of the appellant [the taxpayer] were a substantial compliance with the statute.’ Obviously this is in part, at least, a finding of fact. Compare Commissioner of Corporations and Taxation v. Worcester County Trust Co., 305 Mass. 460, 461, 462, 26 N.E.2d 305. So far as it is a finding of fact not vitiated by error of law it is not subject to review by this court. See Assessors of Boston v. Garland School of Home Making, 296 Mass. 378, 383, 6 N.E.2d 374.

2. The assessors contend that, by reason of noncompliance with the statute requiring that an application to the assessors for abatement shall be ‘on a form approved by the commissioner,’ the appeals to the Appellate Tax Board should have been dismissed on the ground that the board, for this reason, had no jurisdiction of the appeals. For support of this contention the taxpayer relies upon the case of Assessors of Boston v. Suffolk Law School, 295 Mass. 489, 4 N.E.2d 342, 348: In that case there was no finding and no evidence that the application was in fact on a form approved by the commissioner and this court held that ‘the requirement of an application for abatement in the prescribed form is jurisdictional and, since it does not appear that such an application was made by this taxpayer its appeal to the board of tax appeals [now the Appellate Tax Board] should have been dismissed by the board.’ In this connection the court said that neither ‘expressly nor by fair implication is authority conferred on assessors or on the board of tax appeals to abate a tax if no such application was made.’ 295 Mass. at page 498, 4 N.E.2d at page 347. The court also said that the ‘lack of an application in the statutory form is not excused by the good faith of the taxpayer, or acceptance by the assessors of an application in some other form nor by the fact that the assessors are not inconvenienced or misled. Such considerations are material on the issue whether an application meets the requirements of the statute, but do not excuse clear noncompliance with these requirements.’ 295 Mass. at page 494, 4 N.E.2d at page 345.

3. The assessors, though now contending that the applications of the taxpayer did not comply with the statute, previously accepted them and granted abatements thereon. If their contention now made is correct, they acted without authority in granting these abatements. But, in spite of their present attempt, inferentially, to show that their previous action was illegal, such action is entitled to consideration in determining whether the applications were in compliance with the statute.

4. Prior to the amendment of G.L. (Ter.Ed.) c. 59, § 59, by St.1933, c. 266, § 1, which first included in this section the requirement that the application should be ‘in writing * * * on a form approved by the commissioner,’ an oral application for abatement was sufficient. Page v. Melrose, 186 Mass. 361, 71 N.E. 787;Shawmut Mills v. Assessors of Fall River, 271 Mass. 358, 359, 360, 171 N.E. 434. The statute, however, fixed the time within which such application should be made. See G.L. (Ter.Ed.) c. 59, § 59. See, also, St.1933, c. 254, § 43, c. 266, § 1; St.1934, c. 136, § 2; St.1935, c. 187, § 1; St.1939, c. 250, § 1. A ‘seasonable application in some form was essential to jurisdiction of the assessors and of appellate tribunals of a proceeding to abate a tax.’ Assessors of Boston v. Suffolk Law School, 295 Mass. 489, 493, 4 N.E.2d 342, 345. But an oral application seasonably made to the chairman of the board of assessors acting in his official capacity and so received by him was held in the Shawmut Mills case to constitute a sufficient application. See 271 Mass. at pages 360, 361, 171 N.E. 434.

5. Statutory prerequisites to abatement, at the times here material, other than an application ‘in writing * * * on a form approved by the commissioner,’ required by G.L. (Ter.Ed.) c. 59, § 59, as amended, were fixed by G.L. (Ter.Ed.) c. 59, § 61, as amended by St. 1933, c. 165, § 2; by § 64, as amended by St.1933, c. 130, § 1 (see now St.1938, c. 478, § 1; St.1939, c. 31, § 6); and by § 65, as amended by St.1933, c. 130, § 2; c. 167, § 1 (see now St.1939, c. 31, § 7). These statutes are summarized in a footnote. ²

The last sentences in sections 61, and 64 (see section 65 making these provisions applicable to appeals to the Board of Tax Appeals [now the Appellate Tax Board]), relating to abatements of taxes on real estate and requiring inclusion in an application for abatement of such a tax of a ‘sufficient description of the particular real estate as to which an abatement is requested,’ originated in St.1931, c. 150, §§ 2, 3, respectively, whereby new sections 61, 64, were substituted in G.L. See Wynn v. Assessors of Boston, 281 Mass. 245, 246, 247, 183 N.E. 528. The change in the language of section 61 so as to include the words ‘in writing’ modifying the word ‘description’ was made by St.1933, c. 165, § 2. Before the passage of St.1931, c. 150, said section 61 contained a provision that a ‘person shall not have an abatement, except as otherwise provided, unless he has brought in to the assessors the list of his estate as required by section twenty-nine’ a provision, substantially as in the form of the section, set forth, herein (see footnote²) with respect to personal property; and a provision with respect to real estate that if ‘the applicant was not required by said notice to include his real estate in said list, and has not done so, he shall, if he seeks an abatement of the tax on his real estate, file with his application a list of his real estate, with an estimate of the fair cash value of each parcel.’

...