Children's Hosp. Medical Center v. Board of Assessors of Boston

• Decision Date: 19 April 1983
• Citation: 448 N.E.2d 748,388 Mass. 832
• Parties: The CHILDREN'S HOSPITAL MEDICAL CENTER v. BOARD OF ASSESSORS OF BOSTON (and a companion case).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 748

448 N.E.2d 748

388 Mass. 832

The CHILDREN'S HOSPITAL MEDICAL CENTER v. BOARD OF ASSESSORS OF BOSTON

(and a companion case).

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Dec. 10, 1982.

Decided April 19, 1983.

Kenneth J. Mickiewicz, Boston (Warren F. Fitzgerald, Boston, with him), for plaintiff.

Lance R. Pomerantz, Sp. Asst. Corp. Counsel, Boston (Peter Antell, Sp. Asst. Corp. Counsel, Boston, with him), for defendant.

Before HENNESSEY, C.J., and ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

LYNCH, Justice.

The sole issue presented by these consolidated appeals is the jurisdiction of the Appellate Tax Board (board) over an appeal from a denial of applications for abatement of real property tax assessed for fiscal year 1978, ¹ which applications asserted the ground of charitable exemption under G.L. c. 59, § 5, Third. ² On September 30, 1977, the board of assessors of Boston (assessors) assessed taxes in the aggregate amount of $170,049.96 on two parcels owned by the Children's Hospital Medical Center (CHMC). On October 28, 1977, pursuant to G.L. c. 59, § 59, CHMC paid one-half of the taxes assessed and filed with the assessors two applications for abatement on the form prescribed therefor and approved by the Commissioner of Corporations and Taxation ^{3 3} (Form 128). Thereafter CHMC received from the assessors "Abatement Information Requisitions" which were completed, and filed on December 19, 1977. ⁴ The assessors failed to take any action on CHMC's applications within three months, and the applications were deemed denied. G.L. c. 59, § 64.

On April 28, 1978, CHMC appealed the denials to the board under the formal procedure provided by G.L. c. 58A, § 7, and pursuant to Rule 4 of the Rules of the Appellate Tax Board (1982). CHMC's petitions included three grounds of appeal: (1) that it was a charitable organization within the meaning of G.L. c. 59, § 5, Third, and thus was entitled to a statutory exemption from taxation; (2) that the property was overvalued, disproportionately assessed, and assessed in excess of its fair cash value; and (3) that taxation of the property violated certain provisions of the United States and Massachusetts Constitutions. ⁵ The assessors did not file answers to CHMC's petitions to the board.

The two appeals were heard on November 21, 1979. Upon CHMC's waiver of its claims of overvaluation, the board took under advisement the assessors' oral motion to dismiss both appeals for lack of subject matter jurisdiction over the portion of the petitions relating to a charitable exemption under G.L. c. 59, § 5, Third. ⁶ The parties continued to negotiate in an attempt to reach a settlement and on January 18, 1980, counsel for CHMC informed the board by letter that the parties had been unable to resolve the dispute. At the same time, CHMC submitted five requests for rulings of law and a memorandum in support of the board's jurisdiction to determine the merits of the appeals. The board rendered a decision on January 22, 1982, allowing the assessors' motion to dismiss the appeals. CHMC appealed the decision, but did not request findings of fact within ten days of the decision, as required by G.L. c. 58A, § 13, and Rule 32 of the Rules of the Appellate Tax Board (1982). CHMC did file a motion for reconsideration of decision in which it argued that its original requests for rulings of law and memorandum in support of the board's jurisdiction had not been considered by the board. ⁷ This motion was denied on March 18, 1982, and thereafter CHMC filed a statement of the proceedings pursuant to Mass.R.A.P. 8(c), as amended, 378 Mass. 932 (1979), and a request for findings of fact and report of the board's March 18, 1982, action under Rule 32 of the Rules of the Appellate Tax Board (1982). By letter dated April 1, 1982, the board informed CHMC that it was not required to respond to these requests as its March 18 action was not a "decision" within the meaning of rule 32, and as CHMC had not requested findings of fact within ten days of its January 22 decision. CHMC's appeals were consolidated and argued together before this court. We remand the case for further proceedings by the board.

The assessors acknowledge that CHMC is a charitable organization and concede that Form 128 was the proper vehicle for an application for abatement of taxes. They argue, however, that the board lacked jurisdiction under G.L. c. 58A, § 6, over appeals claiming G.L. c. 59, § 5, Third, exemptions for fiscal years preceding 1979, see Assessors of Saugus v. Baumann, 370 Mass. 36, 37, 345 N.E.2d 360 (1976), ⁸ and that CHMC's failure to file by March 1, 1977, the list of exempt property, statements of receipts and expenditures, prescribed by G.L. c. 59, § 5, Third, and § 29, was "a jurisdictional defect which render[ed] the assessor[s] powerless to exempt the property." See Sudbury v. Commissioner of Corps. & Taxation, 366 Mass. 558, 563, 321 N.E.2d 641 (1974); Assessors of New Braintree v. Pioneer Valley Academy, Inc., 355 Mass. 610, 246 N.E.2d 792 (1969); Assessors of Boston v. Suffolk Law School, 295 Mass. 489, 492, 4 N.E.2d 342 (1936). ⁹ The assessors concede that if CHMC had fully complied with the statutory prerequisites for seeking an exemption and had been invalidly assessed despite such compliance, abatement would have been a proper remedy under Assessors of Everett v. General Elec. Co., 330 Mass. 464, 115 N.E.2d 359 (1953) (board had jurisdiction, in appeal from abatement proceedings, to abate invalid tax on machinery owned by the United States), Trustees of Thayer Academy v. Assessors of Braintree, 232 Mass. 402, 122 N.E. 410 (1919) (educational institution which filed an improperly verified list of property and estimated its entire value did not wilfully omit requirements and was entitled to an exemption by abatement), and Milford Water Co. v. Hopkinton, 192 Mass. 491, 78 N.E. 451 (1906) (public service corporation empowered to take land entitled to exemption by abatement). The assessors contend, however, that G.L. c. 59, § 59, affords no basis to abate a validly assessed tax, i.e., a tax levied after the failure of an organization to file properly for an exemption, on the ground that the organization is eligible for a charitable exemption.

CHMC argues persuasively that the board has jurisdiction to consider an appeal from a proceeding in abatement on the ground of charitable exemption. See Trustees of Smith College v. Assessors of Whately, 385 Mass. 767, 768, 434 N.E.2d 182 (1982); Nature Church v. Assessors of Belchertown, --- Mass. ---, Mass.Adv.Sh. (1981) 2318, 429 N.E.2d 329; Meadowbrooke Day Care Center, Inc. v. Assessors of Lowell, 374 Mass. 509, 373 N.E.2d 212 (1978); Mary C. Wheeler School, Inc. v. Assessors of Seekonk, 368 Mass. 344, 331 N.E.2d 888 (1975); Assessors of New Braintree v. Pioneer Valley Academy, Inc., supra; Norwood v. Norwood Civic Ass'n, 340 Mass. 518, 165 N.E.2d 124 (1960). See also Small Business Admin. v. Assessors of Falmouth, 345 Mass. 294, 186 N.E.2d 917 (1963); Assessors of Boston v. Boston Elevated Ry., 320 Mass 588, 70 N.E.2d 812 (1947). CHMC concedes that "a charitable organization which fails to file the list, statements and affidavit in accordance with G.L. c. 59, § 5, Cl. Third (b) is foreclosed from receiving an exemption." In an argument made considerably clearer by its reply brief, CHMC urges that the question whether such filing was properly made is a substantive rather than a jurisdictional issue.

We have never decided the precise question whether the filing with the assessors of the descriptive list, statement, and certification required by G.L. c. 59, § 5, Third (b ), and G.L. c. 59, § 29, is a jurisdictional prerequisite to action by the assessors and review by the board. We hold now that the clear terms of the statute compel the conclusion that this requirement is jurisdictional. Chapter 59, § 5, Third (b ), expressly provided that a charitable organization "shall not be exempt for any year in which it omits to bring in to the assessors the list and statement required by section twenty-nine and a certification under oath that the report for such year required by section eight F of chapter twelve has been filed with the division of public charities in the department of the attorney general." ¹⁰ From time to time the Legislature has adopted provisions to enable charitable organizations, failing to file the list but otherwise eligible for exemptions in certain prior years, to make the appropriate filing and to seek exemption through abatement proceedings. See note 9 supra; St.1974, c. 656 (emergency act permitting application for abatement under G.L. c. 59, § 59, for fiscal years 1972 through 1975, provided list of property filed by October 1, 1974, and "all other requirements for such exemption are complied with"); St.1973, c. 479 (same provision with respect to fiscal years 1971 through 1973). In an appeal not arising under such special statutes, such as the ones before us, we think that a timely filing of the list, statement, and certification with the assessors is a prerequisite to obtaining an abatement. "Nothing in this act shall be construed as waiving the requirement that [charitable] organizations shall file said list pursuant to said section twenty-nine in March, nineteen hundred and seventy-five, to be eligible for tax abatements for the year commencing July first, nineteen hundred and seventy-five." St.1974, c. 656, third par.

Exemption from taxation by statute is to be strictly construed. Assessors of Wilmington v. Avco Corp., 357 Mass. 704, 706, 260 N.E.2d 179 (1970). Norwood v. Norwood Civic Ass'n, supra 340 Mass. at 525, 165 N.E.2d 124. We have held that "[s]ince the remedy of abatement is created by statute, the board lacks jurisdiction over the subject matter of proceedings in which this remedy is sought where those proceedings are commenced at a later time or prosecuted in a different manner than that prescribed by sta...