Board of Assessors of City of Boston v. Suffolk Law School

• Decision Date: 29 October 1936
• Parties: BOARD OF ASSESSORS OF CITY OF BOSTON v. SUFFOLK LAW SCHOOL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

295 Mass. 489

4 N.E.2d 342

BOARD OF ASSESSORS OF CITY OF BOSTON v. SUFFOLK LAW SCHOOL.

Supreme Judicial Court of Massachusetts, Suffolk.

October 29, 1936

Proceeding by the Suffolk Law School against the Board of Assessors of the City of Boston. From a decision of the Board of Tax Appeals, the assessors appeal.

Decision reversed, and appeal of plaintiff to Board of Tax Appeals from the assessors dismissed.

Appeal from Supreme Judicial Court, Suffolk County.

L. H Weinstein, Asst. Corp. Counsel, of Boston, for Board of assessors.

J. M. Swift, of Boston, for taxpayer.

FIELD Justice.

This is an appeal by the assessors of the city of Boston from a decision of the board of tax appeals granting an abatement of a tax for the year 1934 on real estate owned by the Suffolk Law School-a corporation organized under St.1914, c. 145, ‘ to furnish instruction in law’ -hereinafter referred to as the taxpayer.

The taxpayer on April 1, 1934, was the owner of real estate in the city of Boston, and, in December, 1934 was assessed a tax thereon in the amount of $13,801.20. The tax has not been paid. The taxpayer on December 31, 1934, filed with the assessors a document referred to in the findings of fact as an ‘ application for abatement,’ and on March 6, 1935, ‘ the assessors denied the application and gave the * * * [taxpayer] written notice of their decision.’ The taxpayer seasonably appealed to the board of tax appeals. The board, after hearing, granted an abatement of the full amount of the tax assessed. From this decision the assessors appealed to this court.

The taxpayer contends that it was exempt from taxation on its real estate as a literary and educational institution under G.L.[Ter.Ed.] c. 59, § 5, cl. 3. The assessors, while contending that the taxpayer was not so exempt, make the preliminary contention that the board of tax appeals was without jurisdiction to grant the abatement because of the failure of the taxpayer to make an application for abatement as required by law. The taxpayer urges that this preliminary contention is not open on this record, but, if open, is without merit.

The assessors' preliminary contention is open on this record and must be sustained.

The record in this appeal, in accordance with the provisions of G.L. [Ter.Ed.] c. 58A, § 13, as amended by St.1933, c. 321, § 7, includes, with copies of other papers, copies of ‘ the application for abatement or other petition filed * * * with the board of assessors and the decision or determination thereon, the petition upon appeal to the board, the answer to the petition * * * the report and findings of the board including any opinions filed * * * the claim of appeal to the supreme judicial court’ and a copy of the ‘ official report of the proceedings before the board,’ containing all the evidence before it. No ‘ other pleadings' and no ‘ requests for rulings of law and findings of fact’ are included in the record.

G.L.(Ter.Ed.) c. 59, § 59, as amended by St.1933, c. 266, § 1, in force during the period in question, provided that ‘ A person aggrieved by the taxes assessed upon him may * * * apply in writing to the assessors, on a form approved by the commissioner [that is, the commissioner of corporations and taxation], for an abatement thereof; and if they find him taxed at more than his just proportion, or upon an assessment of any of his property in excess of its fair cash value, they shall make a reasonable abatement.’ G.L.(Ter.Ed.) c. 59, § 65, as amended by St. 1933, c. 167, § 1, provides that ‘ A person aggrieved as aforesaid [that is ‘ by the refusal of assessors to abate a tax,’ see G.L.(Ter.Ed.) c. 59, § 64, as amended by St.1933, c. 130, § 1] may, instead of pursuing the remedy provided in section sixty-four [an appeal to the county commissioners], but subject to the same conditions, appeal to the board of tax appeals by filing a petition with such board. * * * Such appeal shall be heard and determined by said board in the manner provided by chapter fifty-eight A.' See, also, G.L.(Ter.Ed.) c. 58A, § 6, as amended by St.1933, c. 167, § 4.

Since the remedy by abatement is created by statute the board of tax appeals has no jurisdiction to entertain proceedings for relief by abatement begun at a later time or prosecuted in a different manner than is prescribed by the statute. International Paper Co. v. Commonwealth, 232 Mass. 7, 10, 121 N.E. 510. See, also, Wheatland v. Boston, 202 Mass. 258, 88 N.E. 769; Cheney v. Assessors of Town of Dover, 205 Mass. 501, 503, 91 N.E. 1005; Bogigian v. Commissioner of Corporations & Taxation, 248 Mass. 545, 143 N.E. 671. And the board of tax appeals has no jurisdiction on appeal from the assessors to abate a tax which the assessors had no jurisdiction to abate. A person refused an abatement of a tax by assessors who were without jurisdiction to abate such tax is not a ‘ person aggrieved’ by such refusal. Otis Co. v. Inhabitants of Ware, 8 Gray, 509, 510; Charlestown v. County Commissioners, 101 Mass. 87, 90; Central National Bank v. Lynn, 259 Mass. 1, 4, 156 N.E. 42; Id., 266 Mass. 145, 164 N.E. 927. See, also, Dunham v. Lowell, 200 Mass. 468, 86 N.E. 951.

The statutes in force before St.1933, c. 266, § 1, took effect, though providing that an aggrieved taxpayer might ‘ apply * * * to the assessors * * * for an abatement’ of a tax within a fixed time, contained no express requirements that the application for abatement be in writing. See R.L. c. 12, § 73; G.L.(Ter.Ed.) c. 59, § 59. And it was decided that an oral application was sufficient. Page v. Melrose, 186 Mass. 361, 363, 364, 71 N.E. 787. See, also, Shawmut Mills v. Board of Assessors, 271 Mass. 358, 360, 361, 171 N.E. 434. It follows, however, from the terms of the governing statutes and the necessary implications of the decisions thereunder that a seasonable application in some form was essential to jurisdiction of the assessors and of appellate tribunals of a proceeding to abate a tax. Such an application was a constituent part of the statutory remedy by abatement, though obviously not essential to other remedies for illegal taxation. See Wynn v. Board of Assessors, 281 Mass. 245, 248, 249, 183 N.E. 528. A limited grant of power to abate a tax is no less effective to exclude from the jurisdiction of the assessors and appellate tribunals a case not within the terms of the grant than is a positive prohibition against abatement such, for example, as is applicable where a list required by statute has not been brought in. See Sears v. Assessors of Nahant, 205 Mass. 558, 91 N.E. 913; Tremont & Suffolk Mills v. Lowell, 271 Mass. 1, 7, 170 N.E. 819. Compare Dunham v. Lowell, 200 Mass. 468, 469, 86 N.E. 951; Bogigian v. Commissioner of Corporations & Taxation, 248 Mass. 545, 143 N.E. 671.

By St.1933, c. 266, § 1, amending G.L.(Ter.Ed.) c. 59, § 59, by substituting a new section therefor, the form of application to assessors for abatement was prescribed. Clearly there was an intention to change the law. Apparently the change was for the purpose of correcting what the Legislature deemed to be a mischief in the less formal procedure previously prescribed. It is not for us to decide whether such change was advisable. Full effect must be given thereto. There is nothing in the statute to indicate that the new provision in respect to the form of applications for abatements is merely directory and not mandatory or that an application in the prescribed form is not as clearly a prerequisite to jurisdiction to abate a tax as was a seasonable application in some form prior to the amendment of the statute by St.1933, c. 266, § 1. It cannot rightly be said that the requirement that an application to the assessors for an abatement be ‘ in writing * * * on a form approved by the commissioner’ as a condition of jurisdiction to abate a tax is so unreasonable that the statute is not to be given its natural meaning as imposing such a condition. See Central National Bank v. Lynn, 259 Mass. 1, 5, 156 N.E. 42; Boston & Albany Railroad Co. v. Boston, 275 Mass. 133, 137, 175 N.E. 740. It follows that an application in the form prescribed by St.1933, c. 266, § 1, is a prerequisite to the jurisdiction of the board of tax appeals of a case like the present. And this statutory prerequisite to jurisdiction cannot be waived by any act of the assessors. See Boston Rubber Shoe Co. v. Malden, 216 Mass. 508, 511, 104 N.E. 478; Dexter v. Beverly, 249 Mass. 167, 169, 143 N.E. 904; Central National Bank v. Lynn, 259 Mass. 1, 3, 156 N.E. 42, and cases cited. 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. See Inhabitants of Great Barrington v. County Commissioners, 112 Mass. 218, 223; West Boylston Mfg. Co. v. Board of Assessors, 277 Mass. 180, 186, 188, 178 N.E. 531. For reasons which will appear later it is unnecessary to consider the effect on jurisdiction of failure of the commissioner to approve a form of application.

The question of jurisdiction of the board of tax appeals-which turns on the issue whether an application to the assessors for abatement was made as required by law-is open for our consideration. The board found that ‘ An application for abatement, dated December 31, 1934, was filed with the assessors the same day,’ and that the ‘ application for abatement was typewritten on a plain sheet of paper.’ The application, a copy of which is contained in the record as required by G.L. c. 58A, § 13, as amended by St.1933, c....