Board of Assessors of Town of Brookline v. Prudential Ins. Co. of America
| Decision Date | 25 November 1941 |
| Citation | 38 N.E.2d 145,310 Mass. 300 |
| Parties | ASSESSORS OF BROOKLINE v. PRUDENTIAL INSURANCE COMPANY OF AMERICA. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
October 6, 1939.
Present: FIELD, C.
J., QUA, DOLAN & COX, JJ.
Tax, On real estate: abatement. Commissioner of Corporations and Taxation. Words, "Sufficient description." The requirement of Section 59 of G. L. (Ter. Ed.) c. 59, as amended by St.
1933, c. 266 Section 1, respecting the form of an application for abatement of a tax on real estate, interpreted with reference to Section
61 as amended by St. 1933, c. 165, Section 2, is that the application shall be in writing on a form approved by the tax commissioner and shall include a sufficient description of the particular real estate as to which an abatement is requested.
The tax commissioner is without power or authority, under the guise of approving a form which an applicant for abatement of a tax on real estate must use under Section 59 of G. L. (Ter. Ed.) c. 59, as amended by St. 1933, c. 266, Section 1, to impose upon the applicant an obligation to furnish information not required by the statutes either expressly or by implication. Under G. L. (Ter. Ed.) c. 59, Section 59, as amended by St 1933, c. 266,
Section 1; Section 61, as amended by St. 1933, c. 165, Section 2, the information to be given on an approved form of application for abatement of a tax on real estate is such as will adequately apprise the assessors that a claim for abatement is being made, by a person entitled to make it, upon particular real estate sufficiently described therein; the application is in the nature of a pleading rather than of presentation of evidence. An application under G. L. (Ter Ed.) c. 59, Section 59, as amended by St.
1933, c. 266 Section 1, for abatement of a tax on real estate need not include information or a statement of evidence as to the value of the property. In determining whether error of law vitiated a finding by the Appellate Tax
Board, (contrary to a contention by assessors,) that an application for an abatement of a tax on real estate was "a substantial compliance with the" requirements of Section 59 of G. L. (Ter. Ed.) c. 59, as amended by
St. 1933, c.
266, Section 1; Section 61, St. 1933, c. 165,
Section 2, that it should be "in writing . . . on a form approved by the commissioner" and should include "a sufficient description" of such real estate, the fact that the assessors had accepted the application and had granted a partial abatement thereon was entitled to and was given consideration.
Statements, made by an applicant for abatement of a tax on real estate on a form approved by the tax commissioner, describing the property as a three-story apartment house containing six apartments located at a given number on a designated street, could be found to have furnished a "sufficient description" within Section 61 of G. L. (Ter. Ed.) c. 59, as amended by St. 1933, c. 165, Section 2; and a finding by the
Appellate Tax Board that the application was sufficient under Section 59 of c. 59 as amended by St. 1933, c. 266, Section 1, was not vitiated by the applicant's failure to answer certain other questions as to the description of the property, and questions as to its value, and questions dealing with other types of property.
APPEAL from a decision by the Appellate Tax Board. R. I. Hunneman, for the Assessors of Brookline.
J. I. Berns, for the taxpayer.
FIELD, C.J. 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. (Ter. Ed.) c. 59, Section 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, Section 59." See said section as appearing in St. 1933, c. 266, Section 1, and amended by St. 1935, c. 187, Section 1. See now St. 1939, c. 250, Section 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, Section 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, Section 59, as amended (see St. 1935, c. 187, Section 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 [that 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, Section 13, as amended) -- that the 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, Section 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 & Taxation v. Worcester County Trust Co. 305 Mass. 460 , 461-462. 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.
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 . 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." Page 498. The court also said that the Page 494.
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, Section 59, by St. 1933, c. 266, Section 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 . Shawmut Mills v. Assessors of Fall River, 271 Mass. 358 , 359-360. The statute, however, fixed the time within...
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