Comm'r of Corps. & Taxation v. Chilton Club

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: RONAN
• Citation: 61 N.E.2d 335,318 Mass. 285
• Decision Date: 15 May 1945
• Parties: COMMISSIONER OF CORPORATIONS AND TAXATION v. CHILTON CLUB.

318 Mass. 285
61 N.E.2d 335

COMMISSIONER OF CORPORATIONS AND TAXATION
v.
CHILTON CLUB.

Supreme Judicial Court of Massachusetts, Suffolk.

May 15, 1945.

Appeal from Appellate Tax Board.

Proceeding by the Chilton Club for abatement of a meal tax assessed by the Commissioner of Corporations and Taxation. From a decision of the Appellate Tax Board granting an abatement, the Commissioner appeals.

Abatement granted.

[61 N.E.2d 336]

Before FIELD, C. J., and DOLAN, RONAN, and SPALDING, JJ.

W. G. Perrin, Asst. Atty. Gen., and R. J. Cotter, Jr., of Boston, for the Commissioner of Corporations and Taxation.

R. Wait, of Boston, for taxpayer.

RONAN, Justice.

This is an appeal from a decision of the Appellate Tax Board granting an abatement of a meal tax assessed by the commissioner of corporations and taxation purporting to act under G.L.(Ter.Ed.) c. 64B, inserted by St.1941, c. 729, § 17.

The taxpayer, a corporation organized in 1910 under the laws of the Commonwealth for the purposes of ‘establishing and maintaining a library and reading room and for other social purposes,’ owns certain premises in Boston upon which it maintains reading rooms, bedrooms, dining rooms, and other facilities ordinarily found at a women's social club, for the exclusive use of its members and their guests. Membership is restricted to women and is limited in numbers as to both resident and nonresident members. There is also a junior membership comprised of minor daughters of members. The club conducts a restaurant and cafeteria which are open daily and which for years have been operated at a loss. Each member may extend the privileges of the club one day a year if the visitor resides in Boston, or one week in a year if the visitor resides more than forty miles from Boston. Guests accompanied by members, visitors of members and members are the only persons served with food at the club.

The taxpayer under protest applied for and secured from the commissioner a certificate of registration in December, 1941, which was issued in accordance with G.L.(Ter.Ed.) c. 64B, § 3, and thereafter filed monthly returns with the commissioner. The latter on October 20, 1943, sent the taxpayer a notice of delinquency, and informed the taxpayer that it had failed to file a correct and sufficient return for the months of June, July, August and September, 1943, and that, unless proper returns were filed within twenty days, he would determine the amount of the tax. No new returns having been filed, the commissioner on November 18, 1943, determined the amount of the tax for these four months. The present petition, which was filed with the Appellate Tax Board on November 19, 1943, was based upon the notice of delinquency and sought a decision that the taxpayer was not required to file any returns and that it was not subject to the tax. This petition was later amended by including the determination of the tax by the commissioner and sought the abatement of the tax.

[61 N.E.2d 337]

One of the grounds of this appeal, from the decision of the Appellate Tax Board, is that the board had no jurisdiction to entertain the proceeding. While that point has not been argued by the appellant, nevertheless it is our duty to deal with the question of jurisdiction of our own motion. Commonwealth v. Dyer, 243 Mass. 472, 508, 138 N.E. 296;City of Boston v. Dolan, 298 Mass. 346, 355, 356, 10 N.E.2d 275. We mention the matter as it deals with jurisdiction, and it is our duty on our own account to determine the point even though it has not been raised by the parties or, if raised, has been abandoned by one of the parties. Blair v. Boston Elevated Railway Co., 310 Mass. 1, 36 N.E.2d 419;Couto v. Trustees of New York, New Haven & Hartford Railroad, 312 Mass. 23, 42 N.E.2d 802. The petition was seasonably filed. There was no necessity for an amendment, since the original petition entitled the taxpayer to an adjudication on its liability to a tax and the amount, if any, for which it was liable. Commissioner of Corporations & Taxation v. City Club Corp., Mass., 61 N.E.2d 332.

The fact that c. 64B, § 7, in one instance at least, expressly provides that the decision of the board shall be final does not deprive one of securing a review of questions of law passed upon by the board. Similar phraseology in various statutes has been construed to mean that findings of fact are final and that, where no particular or specific provision is made for a review or an appeal from such decisions, a party whose substantial rights have been adversely affected by errors of law apparent on the record, committed by a tribunal or board acting in a quasi judicial capacity and not in the course of the common law, may have the proceedings quashed upon a petition for certiorari. Swan v. Justices of Superior Court, 222 Mass. 542, 111 N.E. 386;Opinion of the Justices, 251 Mass. 569, 615, 147 N.E. 681;Whitney v. Judge of District Court of Northern Berkshire, 271 Mass. 448, 171 N.E. 648;Hough v. Contributory Retirement Appeal Board, 309 Mass. 534, 36 N.E.2d 415. See Driscoll v. Mayor of Somerville, 213 Mass. 493, 100 N.E. 640; McLaughlin v. Mayor of Cambridge, 253 Mass. 193, 148 N.E. 458. The Legislature, however, has provided a remedy. The right to appeal to this court from decisions of the board is created and governed by statute. Hayward v. Board of Assessors of Boston, 304 Mass. 355, 23 N.E.2d 917;New England Trust Co. v. Assessors of Boston, 308 Mass. 543, 33 N.E.2d 268. This statute, G.L.(Ter.Ed.) c. 58A, § 13, provides that an appeal may be taken to this court from ‘any decision of the board upon an appeal from a decision or determination of the commissioner, or of a board of assessors,’ with certain exceptions not now material, although the decision of the board as to questions of fact is final. The instant appeal comes within the terms of this statute and the case is properly here.

The taxing act, c. 64B, § 2, levies a tax upon the furnishing of meals for which the purchasers are charged $1 or more and which are ‘furnished at any restaurant, eating house, hotel, drug store, club, resort or other place at which meals or food are regularly served to the public.’ The principal contention of the commissioner is that the furnishing of meals by a club for which the purchaser is charged $1 or more makes the club subject to the tax. The conclusion thus urged is reached by isolating a few words from said section 2 and then attempting to give them a meaning as if they stood alone. Such an interpretation does violence to the statute. It proceeds upon the false assumption and there is nothing in the entire taxing act, other than the part mentioned, that sheds any light upon the...