Bogigian v. Long
| Court | United States State Supreme Judicial Court of Massachusetts |
| Writing for the Court | CARROLL |
| Citation | 248 Mass. 545,143 N.E. 671 |
| Decision Date | 15 April 1924 |
| Parties | BOGIGIAN v. LONG, Tax Com'r. |
248 Mass. 545
143 N.E. 671
BOGIGIAN
v.
LONG, Tax Com'r.
Supreme Judicial Court of Massachusetts, Worcester.
April 15, 1924.
Report from Superior Court, Worcester County; Marcus Morton, Judge.
Petition by Hagop Bogigian against Henry F. Long, Commissioner of Taxation for the Commonwealth of Massachusetts, for abatement of taxes assessed upon income received. On report. Decree entered sustaining demurrer to petition.
[248 Mass. 546]
[143 N.E. 672]
W. B. Grant, H. E. Whittemore, and E. S. Fernald, all of Boston, for petitioners.
Jay R. Benton, Atty. Gen., and Day Kimball, Asst. Atty. Gen., for defendant.
CARROLL, J.
[1][2] 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 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, § 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 [248 Mass. 547]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 seeking a remedy given by 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.’ Pitkin v. Springfield, 112 Mass. 509;Moore v....
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...out in the statute. In re Stevens, Landowner, 228 Mass. 368, 373, 374, 117 N.E. 588;Bogigian v. Commissioner of Corporations & Taxation, 248 Mass. 545, 547, 143 N.E. 671;Barnes v. Springfield, 268 Mass. 497, 503, 168 N.E. 78. And the respondents make no objection to the determination of the......
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