Boston Symphony Orchestra, Inc. v. Board of Assessors of City of Boston
| Decision Date | 04 April 1936 |
| Citation | 294 Mass. 248,1 N.E.2d 6 |
| Parties | BOSTON SYMPHONY ORCHESTRA, Inc., v. BOARD OF ASSESSORS OF CITY OF BOSTON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Appeal from Board of Tax Appeals.
Petition by the Boston Symphony Orchestra, Incorporated, against the Board of Assessors of the City of Boston for the abatement of real property tax. From an adverse decision of the Board of Tax Appeals, the Boston Symphony Orchestra appeals.
Order in accordance with opinion.
B. W. Warren, H. B. Cabot, and S.D. Ferguson, all of Boston, for appellant.
L. H Weinstein, Asst. Corp. Counsel, of Boston, for appellee.
This is a petition by the appellant, Boston Symphony Orchestra, Inc. for the abatement of a real property tax assessed by the City of Boston for the year 1934. The appellant contends that the property upon which the tax was levied is exempt as the property of a ‘ literary, benevolent, charitable and scientific’ institution within the meaning of G.L.(Ter.Ed.) c. 59, § 5.
The following material facts were found by the board of tax appeals: The Boston Symphony Orchestra was founded in 1881 by the late Henry L. Higginson, as a helpful and beneficial element in the life of a community and an aid to the musical education of the people of Boston, and to foster their appreciation of music. The appellant was incorporated in 1918 for the purpose, as stated in the charter, of ‘ undertaking the further carrying on of a symphony orchestra such as has been carried on during the past thirty-seven years by Henry L. Higginson under the name of the Boston Symphony Orchestra; to maintain a symphony orchestra and give concerts; to promote the enjoyment of music and the rendering of music through concerts, and establish and increase high standards in the rendering of orchestral music and in concerts; to promote musical education and greater public appreciation of music.’ The orchestra has had an uninterrupted existence for about fifty-four years under various distinguished conductors. It is composed of about one hundred and ten musicians, who are engaged under yearly contract, in addition to the conductor. It has an international reputation as one of the greatest orchestras in the world. The corporation has no stockholders, control being vested in a self-perpetuating board of trustees. On March 27, 1934, the corporation acquired the property in controversy, consisting of land and a building known as Symphony Hall. This building is used by the appellant as a concert hall. There is no other hall in the city of Boston as suitable as Symphony Hall for the purposes of the orchestra, and such a hall is necessary for the orchestra as it is operated at present. During the course of the regular concert season extending over thirty weeks, the orchestra gives four series of concerts, totalling about sixty concerts, together with several other concerts for the benefit of the orchestra's pension fund. Concerts are given also in cities in other parts of the country. At these regular concerts classical music of the highest order is played, including compositions of the world's greatest composers, symphonies, overtures and program music and also the best of modern music. Of the regular concerts one series comprises twenty-four Friday afternoon concerts, and another, twenty-four Saturday evening concerts; the other two series are usually shorter and comprise respectively six Monday evening and six Tuesday afternoon orchestra concerts. In addition to these concerts there are about ninety-nine full orchestra rehearsals in the hall in preparation for the concerts of the regular season, and some choral rehearsals and auditions.
Following the regular symphony season and usually beginning in May, there is given a series of more informal concerts familiarly known as the ‘ Pop’ concerts. There are fifty-eight of these given over a period of ten weeks. In addition there are about twenty rehearsals held during the ‘ Pop’ concert season. At the ‘ Pop’ concerts the music played is lighter in character than that played during the regular season. It frequently contains orchestral arrangements of modern popular music, but much of it is by composers whose works are performed at the regular concerts and it is all good music. The orchestra is smaller, floor seats are removed and tables and chairs are substituted, light refreshments, including sandwiches, soft drinks, beer, and wine are served and smoking is permitted.
Tickets for the regular concerts were offered to he public in the following manner: At the close of each regular season subscribers for season tickets during that season were given the opportunity before a certain date in May to renew their subscriptions for the same seats for the series of the next season. Prices for season tickets ranged from $25 to $100 for the long series and from $6 to $15 for the short series according to location of the seats. After that season tickets for seats not taken were offered for sale to the public. Tickets unsubscribed for and tickets for particular concerts, returned by subscribers for resale, were placed on sale at the box office and were available to the public at the following prices: For the Friday concerts $2 to $4 each; for the Saturday concerts $2 to $3.50; and for the Monday and Tuesday concerts $1.50 to $3. In addition, for the Friday concerts all the seats in the second balcony back of the second row, two hundred and fifty one in number, were unreserved and were sold to first comers at fifty cents a ticket. These were known as ‘ rush line’ seats. At various times and for various regular concerts all available tickets were purchased by the season subscribers, but for all concerts subsequent to 1933 some seats remained unsold. Tickets for the ‘ Pop’ concerts were sold separately for each concert and ranged in price from fifty cents to $1. Tickets for the extra concerts, such as pension fund concerts and festivals, were sold only at the box office.
As to free distribution of tickets to students of music the board found that some tickets were purchased by individuals to give to students, some were given by persons who did not care to use their tickets, and that the trustees of the orchestra have a fund of $10,000 given to them in trust to use the income for the purchase of season tickets ‘ to be given to the most talented and deserving music pupils of the New England Conservatory of Music.’ There was no other distribution of tickets by the appellant directly to students and, except as pointed out above, no effort was made by the appellant to give students, other than those who could afford to pay the price of admission, the benefit of hearing the concerts. During the tax year in question, there was at least one concert in memory of Major Higginson, to which the public was admitted free, and there were at least two other concerts to which subscribers were admitted without charge. On all other occasions there was a charge for admission.
Subscribers were solicited by advertisements in the programs for regular and ‘ Pop’ concerts, notices on bulletin boards at Symphony Hall, newspaper advertisements and communications sent to special groups, such as doctors, teachers and clergymen. A majority of those who attended were not persons of substantial means.
As to the use of the hall for concerts and other purposes, the board found that over a five-year period the hall was used for concerts one hundred and twenty-three to one hundred and twenty-nine times a year; that it was used for orchestral rehearsals one hundred and thirty-four times each year; and that over the same period it was used for outside rentals from seventy-seven to one hundred and forty-five times each year. Gross revenue obtained from concerts varied from $394,656.89 to $432,480.50, while for the same period revenue from rentals varied from $18,289.22 to $49,945.18, and revenue from advertisements from $24,715.10 to $52,919.27. There has been a substantial deficit from the operation of the orchestra every year since it was first organized. The deficit has been met through the contributions by the public, principally concert-goers, and there is at present a deficit of a few thousand dollars.
On the foregoing facts a majority of the board of tax appeals ruled, as summarized by the appellant, as follows: (1) The appellant is not a charitable corporation exempt from taxation on account of the real estate involved in said cause. (2) The burden of proof was upon the appellant to show that said property was exempt from taxation. (3) The appellant is not an educational institution. (4) The presentation of music by the appellant in the building involved did not constitute education within the meaning of the word ‘ charitable’ as used in G.L.(Ter.Ed.) c. 59, § 5, Third. (5) Assuming the dominant activities of the appellant bring it within the exempting statute, the benefit of its activities were not extended to the poor as well as to the rich.
The appellant contends that the board should have given the following requested rulings:
The appellant states in its brief...
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