Lindberg v. State Tax Commission

• Decision Date: 06 December 1956
• Citation: 138 N.E.2d 753,335 Mass. 141
• Parties: Ernest E. LINDBERG v. STATE TAX COMMISSION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 753

138 N.E.2d 753

335 Mass. 141

Ernest E. LINDBERG v. STATE TAX COMMISSION.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 3, 1956.

Decided Dec. 6, 1956.

Howard V. Foulke, for the taxpayer.

Samuel W. Gaffer, Asst. Atty. Gen. (Robert C. M. Mulcahy, Boston, with him), for State Tax Comm.

George B. Lourie and John P. Martin, Boston, by leave of court, amici curiae.

Before WILKINS, C. J., and RONAN, SPALDING, WILLIAMS and WHITTEMORE, JJ.

RONAN, Justice.

This is an appeal by the taxpayer from a decision of the Appellate Tax Board dismissing an appeal to the board from denial of an application for a partial abatement of a tax on income for the calendar year of 1951. The tax was paid in accordance with a return filed on April 15, 1952. The taxpayer filed an application for abatement with the State tax commission on April 13, 1955, claiming an error in the return he filed on April 15, 1952. The commission denied the application as filed too late under G.L. (Ter.Ed.) c. 62, § 43, as amended. The taxpayer then appealed to the board.

The commission points to G.L. (Ter.Ed.) c. 62, §§ 45, 48, the first providing that the decision of the board shall be final and conclusive, 'except as otherwise provided herein,' and the second that the 'remedies provided by sections forty-three to forty-seven, inclusive, shall be exclusive.' The instant appeal, however, is brought under G.L. (Ter.Ed.) c. 58A, § 13, which allows an appeal from 'any decision' of the board. Similar appeals have been previously entertained. We think the case is properly here. Commissioner of Corporations & Taxation v. Alford, 282 Mass. 113, 184 N.E. 437; Brink v. Commissioner of Corporations & Taxation, 299 Mass. 280, 13 N.E.2d 2; United States Trust Co. v. Commissioner of Corporations & Taxation, 299 Mass. 296, 13 N.E.2d 6; Commissioner of Corporations & Taxation v. Bristol County Kennel Club, Inc., 301 Mass. 27, 16 N.E.2d 43; Commissioner of Corporations & Taxation v. Dalton, 304 Mass. 147, 23 N.E.2d 147.

At the time the taxpayer filed his return on April 15, 1952, the statute expressly provided that the return for the year 1951 should be filed on or before April 15, 1952. St.1951, c. 750, § 2. The statute at the time the return was filed, in fixing the time for applying for abatement, provided that 'Any person who believes that the tax shown on the return filed by him pursuant to section twenty-two is excessive may apply in writing to the commissioner on a form approved by him for an abatement thereof at any time within one year from the last day for filing such return * * *.' G.L.(Ter.Ed.) c. 62, § 43, as amended by St.1951, c. 528. It is plain that by virtue of this statute the taxpayer had until April 15, 1953, to file his application for abatement. This statute was superseded by St.1954, c. 269, which inserted a new § 43 which then read as follows: 'Any person who believes he has overpaid any tax imposed by this chapter may apply in writing to the state tax commission, hereinafter called the commission, on a form prescribed by it for an abatement of any such overpayment of tax at any time within three years from the last day for filing the return required by this chapter, or within one year after the date of such overpayment, whichever occurs later * * *.' By this statute, if applicable, the taxpayer had until April 15, 1955, to file his application.

The question presented is whether the amendment of G.L. (Ter.Ed.) c. 62, § 43, by St.1954, c. 269, extending the time for filing an application to three years from the filing of the return, applies or whether the right to file such an application expired in one year from the date of filing the return, in other words, whether it expired on April 15, 1953, or whether it was extended to April 15, 1955.

As a general rule, statutes creating or taking away substantive rights are interpreted as being prospective in their operation unless it clearly appears they were intended to be given a retrospective effect, Hanscom v. Malden & Melrose Gas Light Co., 220 Mass. 1, 3-5, 107 N.E. 426; Wynn v. Board of Assessors of City of Boston, 281 Mass. 245, 249, 183 N.E. 528; Opinion of the Justices, 334 Mass. ----, 134 N.E.2d 923; but statutes dealing with remedies or procedure usually apply to pending cases. Smith v. Freedman, 268 Mass. 38, 41, 167 N.E. 335; Ahmed's Case, 278 Mass. 180, 189, 179 N.E. 684, 79 A.L.R. 669; Ring v. City of Woburn, 311 Mass. 679, 682, 43 N.E.2d 8; In re Berkwitzk, 323 Mass. 41,...