Commissioner of Corporations and Taxation v. City Club Corp.

• Decision Date: 15 May 1945
• Citation: 318 Mass. 293,61 N.E.2d 332
• Parties: COMMISSIONER OF CORPORATIONS AND TAXATION v. CITY CLUB CORPORATION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

318 Mass. 293

61 N.E.2d 332

COMMISSIONER OF CORPORATIONS AND TAXATION v. CITY CLUB CORPORATION.

Supreme Judicial Court of Massachusetts, Suffolk.

May 15, 1945

April 2, 1945.

Present: FIELD, C.

J., DOLAN, RONAN & SPALDING, JJ.

Taxation, Meal tax Appellate Tax Board: jurisdiction.

The right to the appeal provided in Section 7 of G. L. (Ter. Ed.) c. 64B inserted by St. 1941, c. 729, Section 17, relating to a meal tax, is from the notice given by the commissioner of delinquency as to a return and not from a later determination of the tax by the commissioner on failure to comply with the terms of the notice; and the Appellate Tax

Board had no jurisdiction of such an appeal taken more than thirty days after the notice of delinquency.

APPEAL from a decision of the Appellate Tax Board.

W. G. Perrin Assistant Attorney General, (R.

J. Cotter, Jr., Assistant Attorney General, with him,) for the Commissioner of Corporations and Taxation.

H. S. Davis, for City Club Corporation.

RONAN, J. The commissioner of corporations and taxation appeals from a decision of the Appellate Tax Board abating a meal tax, so called, which he had determined was due under G. L. (Ter Ed.) c. 64B, inserted by St. 1941, c. 729, Section 17.

The appellee, the club, owns a three-story building, the second and third floors of which are occupied by it. The club was incorporated under the laws of this Commonwealth more than fifty years ago for the purpose of "establishing and maintaining a place for social meetings." The top floor is used as a dining room for members and their guests. The membership is limited to two hundred, and on an average two or three meals a week are served to guests. The club is open each week day from noon to three o'clock for the purpose of serving meals. Each member pays dues and is charged each month for meals, whether he is accommodated or not, unless he makes other arrangements with the club. The commissioner, under the date of October 20, 1943, notified the club that it had failed to file correct and sufficient returns for July and August, 1943, and that, if proper returns were not filed within twenty days, he would determine the amount of the tax. The club filed no further returns for these two months. The commissioner determined on November 18, 1943, the amount of the tax for June and July, 1943. The club filed an appeal with the Appellate Tax Board on November 29, 1943.

The appeal to the board purported to be taken under c. 64B, Section 7. This statute provides, "If a taxpayer, having failed to file a return or, having filed an incorrect or insufficient return, without reasonable excuse fails to file an original or corrected return, as the case may require, within twenty days after the giving of notice to him by the commissioner of his delinquency, the commissioner, at any time within three years from the date when the return should have been filed, shall determine the amount due. The taxpayer, within ten days after the expiration of said period of twenty days may appeal from the decision of the commissioner to the appellate tax board, whose decision shall be final. The commissioner or, in the case of appeal, the appellate tax board, having made such determination, shall give notice to the delinquent taxpayer of the amount determined to be due, and the taxpayer shall forthwith after the giving of such notice pay to the commissioner the amount so determined with interest at six per cent from the time when the original correct return should have been filed." This statute might well have been cast in more direct and certain terms. The ascertainment of the legislative intent is not entirely free from difficulty. We are not unmindful of the report made to the current session of the Legislature by the Appellate Tax Board directing attention to the need of clarification of this section; nor of the bills now pending for the accomplishment of this purpose; nor of the administrative practice adopted by the board in holding that no appeal lies except from a determination of the tax.

The question is whether the appeal to the board under Section 7 lies from the notice of the delinquency or only from the determination of the tax. Where no return has been filed or the commissioner decides that the return filed is insufficient or incorrect he cannot determine the tax until he has given to the taxpayer a notice of delinquency and an opportunity for a period of twenty days to file a return, if he has not filed one, or to file an amended return, if the commissioner decides that the one originally filed is insufficient or incorrect; but if the taxpayer does neither, then the commissioner may assess the tax. The taxpayer may...