Board of Assessors of City of Everett v. General Elec. Co.

• Decision Date: 29 October 1953
• Citation: 330 Mass. 464,115 N.E.2d 359
• Parties: BOARD OF ASSESSORS OF CITY OF EVERETT v. GENERAL ELECTRIC CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 359

115 N.E.2d 359

330 Mass. 464

BOARD OF ASSESSORS OF CITY OF EVERETT v. GENERAL ELECTRIC CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 8, 9, 1953.

Decided Oct. 29, 1953.

Harris E. Albert, City Sol., Everett, for Assessors of Everett, submitted a brief.

William R. Cook, Boston, for taxpayer.

Erwin A. Goldstein, Sp. Asst. to U. S. Atty. Gen., for the U. S.

Before QUA, C. J., and LUMMUS, RONAN, SPALDING and WILLIAMS, JJ.

RONAN, Justice.

This is an appeal by the board of assessors of the city of Everett from a decision of the Appellate Tax Board granting an abatement of the entire tax assessed to the taxpayer on machinery employed in a manufacturing plant located in that city.

The taxpayer had been classified by the commissioner of corporations and taxation as a foreign manufacturing corporation as defined in G.L. (Ter.Ed.) c. 63, § 42B, as appearing in St.1937, c. 383, § 2, and on January 1, 1950, occupied land and buildings owned by the United States and known as the 'Air Force Plant.' The land and buildings together with 550 machines located on these premises were owned by the federal government and were leased to the taxpayer. The latter owned 200 machines which were located at this plant on the above mentioned date. Other than these 750 machines there was no machinery at the plant on the said date. All of this machinery was used by the taxpayer for the manufacture of parts for gas turbine or jet engines and other products for the air force of the United States. The taxpayer in January, 1950, filed with the assessors a list disclosing that it owned certain poles, underground conduits, wires and pipes at the plant, together with the machinery. The assessors made no assessment of a tax upon any of these objects other than upon the machinery, The assessors denied an application for the abatement of the tax; the taxpayer paid the tax and seasonably appealed to the Appellate Tax Board. The board allowed the United States to intervene.

The board found upon all the evidence that the 550 machines were owned by the United States and were not subject to local taxation. This conclusion was correct. In the first place, property owned by the Federal government is expressly exempted from such taxation by G.L. (Ter.Ed.) c. 59, § 5, First, as appearing in St.1938, c. 47, Van Brocklin v. Tennessee, 117 U.S. 151, 155, 6 S.Ct. 670, 29 L.Ed. 845; Macallen Co. v. Massachusetts, 279 U.S. 620, 628, 49 S.Ct. 432, 73 L.Ed. 874; and in the next place a taxing provision is invalid which purports 'to authorize taxation of the property interests of the United States in the machinery in * * * [the plant of the lessee of the United States engaged in producing ordinance for the government, to whom the tax was assessed], or to use that interest to tax or to enhance the tax upon the Government's bailee.' United States v. Allegheny County, 322 U.S. 174, 192, 64 S.Ct. 908, 918, 88 L.Ed. 1209.

The remaining 200 machines were owned by the taxpayer, a foreign manufacturing corporation as defined in G.L. (Ter.Ed.) c. 63, § 42B, and so classified by the commissioner of corporations and taxation. These machines were exempt from local taxation by virtue of G.L. (Ter.Ed.) c. 59, § 5, Sixteenth, as amended. Commissioner of Corporations and Taxation v. Assessors of Boston, 312 Mass. 90, 71 N.E.2d 874; Assessors of Boston v. Commissioner of Corporations and Taxation, 323 Mass. 730, 84 N.E.2d 129.

The decision of the Appellate Tax Board is final as to its findings of fact, and an appeal brings to this court only questions of law raised before the board and set forth separately and specifically in the claim of appeal. Assessors of Lawrence v. Arlington Mills, 320 Mass. 272, 273, 69 N.E.2d 2; Assessors of Worcester v. Knights of Columbus Religious Educational Charitable & Benevolent Association, 329 Mass. 532, 534, 109 N.E.2d 447. The claim of appeal contains only three grounds: first, that the decision was not warranted by the evidence; second, that the taxpayer did not pay the tax within three months of filing its application for abatement with the assessors; and third, that the board 'erred in taking jurisdiction where a suit at law was brought to recover the payment of the illegal tax.'

The first ground of appeal challenges the sufficiency of the evidence to support the decision of the board. The assessors have waived this objection not only because it has not been argued but also because they virtually concede in their argument that the tax was void. As to the third ground of appeal, that the board had no jurisdiction to grant an abatement because the taxpayer had commenced an action at law to recover the amount paid, it might be enough to say that outside of statements contained in the pleadings filed by the assessors alleging the existence of such an action it nowhere appears in this record that there was any evidence introduced before the board to prove that such an action was brought. Apparently parently, this was the reason that the board made no findings concerning any such action. We do not intimate that, if there was such an action, it would bar the granting of relief by the board. See Radway v. Selectmen of Dennis, 266 Mass. 329, 336, 165 N.E. 410.

The assessors contend that by reason of the failure of the taxpayer to pay the tax before the application for an abatement was...