Bogigian v. Long
| Decision Date | 15 April 1924 |
| Citation | 248 Mass. 545,143 N.E. 671 |
| Parties | BOGIGIAN v. LONG, Tax Com'r. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
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.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.
[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 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. Sanford, 151 Mass. 285, 24 N. E. 323,7 L. R. A. 151;New York Life Ins. Co. v. Hardison, 199 Mass. 190, 196, 85 N. E. 410,127 Am. St. Rep. 478;In re Stevens, Landowner, 228 Mass. 368, 374, 117 N E. 588.
[3][4] As to the taxes assessed for the years 1919 and 1920: The petitioner contends that as St. 1916, c. 269, § 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, § 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, c. 269, St. 1916, 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, c. 490, pt. I, of St. 1909, an abatement may be granted if the court finds that the complainant has complied with the provisions of the law ‘and has paid the tax.’ The abatement of the tax in this proceeding was based on the payment of the tax by the complainant; and his petition under the statute was to recover the money already paid. The court could not grant relief to him unless the tax had been paid and the terms of St. 1909, c. 490, pt. I, § 80, controlling the proceedings, provides that before an abatement could be granted, it was...
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