Bogigian v. Commissioner of Corporations & Taxation
| Decision Date | 15 April 1924 |
| Parties | HAGOP BOGIGIAN v. COMMISSIONER OF CORPORATIONS AND TAXATION. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Present: RUGG, C.
J., CROSBY, PIERCE & CARROLL, JJ.
Tax, On income abatement.
One assessed with an income tax for the years 1919, 1920, and 1921 cannot maintain in the Superior Court a petition under G.L.c. 62 Section 47, or under St. 1909, c. 490, Part 1, Section 80 for the abatement of the tax unless before filing the petition he has paid the tax. One cannot at the same time seek the relief granted by G.L.c. 62, Section
47, for the abatement and repayment of an income tax and also contend that the statute upon which he relies is unconstitutional.
It was stated, that one who has applied to the tax commissioner under G.L.c.
62, Section 43, for an abatement of an income tax and, upon his refusal, has sought to have the commissioner's action reviewed by the board of appeal in tax matters under Section 45, is not prevented by the provision in Section 45, that the decision of the board of appeal shall be "final and conclusive," from seeking a writ of certiorari to correct errors of law, if any, in such proceedings.
PETITIONS, filed in the Superior Court on January 10, 1923, for abatement of income taxes assessed upon the petitioners for the years 1919, 1920, and 1921.
In the Superior Court, the respondent demurred on the ground that the petitioners in no way alleged that the income tax sought to be abated had been paid. The demurrers were heard by Morton, J., and were sustained. The judge, under G.L.c. 231, Section 111, thereupon reported the petitions and his rulings upon the demurrers to this court for determination.
The cases were, submitted on briefs.
W. B. Grant, H.
E. Whittemore & E.
S. Fernald, for the petitioners.
J. R. Benton, Attorney General, & D.
Kimball, Assistant Attorney General, for the respondent.
This is a petition for the abatement of taxes assessed upon income received by the petitioner during the years 1919, 1920 and 1921. He alleges that for many years prior to the year 1915 he was a resident of the town of Lancaster; that in the year 1914 he took up his residence in California; that he seasonably applied to the commissioner for an abatement of these taxes and on December 22, 1922, was notified by the commissioner that his petition for abatement was denied. This petition was then brought in the Superior Court; the defendant demurred on the ground that the petition contained no allegation that the taxes complained of had ever been paid. The demurrer was sustained.
G.L.c. 62, Section 47, gives to the taxpayer who is aggrieved by the refusal of the tax commissioner to abate the tax, "and who has paid his tax," the right to petition in the Superior Court for an abatement. The remedy sought by the petitioner is under this statute and is given only to one who has paid his tax.
As to tax assessed on income for the year 1921: it is clear that the statute was then effective; and, not having complied with its terms by the payment of the tax the petitioner cannot prevail under these proceedings. He contends that the statute is unconstitutional, on the ground that it requires a nonresident to pay his tax before he can have it abated. Without intimating that the statute is unconstitutional, the petitioner is seeing a remedy given this particular statute. He asserts a right derived solely from the statute. He cannot, therefore, at the same time urge the unconstitutionality of the enactment under which he seeks his remedy. "If he takes advantage of the protection given by the statute for a review . . . he can enjoy that protection only upon the terms set out in the statute." Stevens, landowner, 228 Mass. 368 , 374. Pitkin v. Springfield, 112 Mass. 509. Moore v. Sanford, 151 Mass. 285 . New York Life Ins. Co. v. Hardison, 199 Mass. 190 , 196.
As to the taxes assessed for the years 1919 and 1920: the petitioner contends that as St. 1916, c. 269, Section 20, contains no provision requiring the payment of the tax before seeking relief by petition to the Superior Court, and as G.L.c. 62, Section 47 requiring this payment, did not become effective until January 1, 1921, the taxes assessed for these years can be abated under the petition without first paying the tax. Although the payment of the tax was not mentioned in Section 20 of St. 1916, c. 269, that section provides for the filing of a petition in the Superior Court and directs that the "subsequent proceedings shall be conducted in accordance with the provisions of sections seventy-seven to eighty, inclusive, of Part I of chapter four hundred and ninety of the acts of the year nineteen hundred and nine." This section further enacts that "If an abatement is granted, the amount thereof shall be repaid to the complainant." By Section 80 of St. 1909, c. 490, Part I, an abatement may be granted if the...
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