Raymer v. Tax Commissioner

• Decision Date: 15 September 1921
• Citation: 239 Mass. 410
• Parties: GEORGE S. RAYMER v. TAX COMMISSIONER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

239 Mass. 410

GEORGE S. RAYMER v. TAX COMMISSIONER.

Supreme Judicial Court of Massachusetts, Middlesex.

September 15, 1921

March 15, 1921.

Present: RUGG, C.

J., BRALEY, PIERCE CARROLL, & JENNEY, JJ.

Tax, On income Abatement. Constitutional Law, Taxation. Practice, Civil Parties. Public Officer. Words, "Property." The right sought to be enforced by a complaint, filed under G.L.c. 62,

Section 47, for the purpose of appealing from a refusal of the Tax Commissioner to abate an income tax, is in substance and effect against the Commonwealth; and it is not necessary, upon the retirement of the

Tax Commissioner and the appointment and qualification of his successor while such a complaint is pending, to amend the complaint by substituting the new commissioner as the party respondent. The words of art. 44 of the Amendments to the Constitution of the

Commonwealth are to be interpreted as expressing comprehensive principles of government and are not to be given a narrow or contracted signification. The word "property" as used in art 44 of the Amendments to the

Constitution of the Commonwealth includes contracts for labor and service.

It was not contrary to art. 44 of the Amendments to the Constitution of the Commonwealth to assess, under St. 1919, c. 324, Section 1, an income tax upon salary received by a citizen of this Commonwealth as an associate professor in a university.

COMPLAINT, filed in the Superior Court on September 17, 1920, under St. 1916, c. 269, Section 20, for the purpose of appealing from the refusal of the Tax Commissioner to abate an income tax assessed upon the complainant under the provisions of St. 1919, c. 324, Section 1.

While the complaint was pending in the Superior Court, William D. T. Trefry, who had been tax commissioner when the complaint was filed, was succeeded by Henry F. Long, and the complainant thereupon filed a motion to amend his complaint by substituting the new commissioner as respondent.

The respondent's answer admitted the allegations in the complaint, and the case was reported by Wait, J., to this court for determination upon the complaint, the answer and the complainant's motion to amend.

J. M. Maguire, for the complainant. E. H. Abbot, Jr., Assistant Attorney General, for the respondent.

RUGG, C.J. This is a complaint under St. 1916, c. 269, Section 20 (see now G.L.c. 62, Section 47), for the abatement of an income tax. The person named in the complaint as respondent in his official capacity as commissioner of corporations and taxation retired from that office and has been succeeded by another. The right sought to be enforced is in substance and effect against the Commonwealth. In the event that the complainant prevails, no judgment or decree is made up in the ordinary form and no execution runs against the respondent. The decision of the court must be expressed in special form to conform to the words of the statute. The State treasurer is required by the express terms of the statute to repay the amount of the abatement to the complainant with interest at the rate of six per cent per annum from the time the tax was paid and costs. The decision of the court must conform to the terms of the statute because the Commonwealth as the sovereign power has the right to fix absolutely the terms on which it may be impleaded in its own courts, the form in which the decision of the court shall be expressed, and the method by which the adjudication of the court shall be satisfied. McArthur Brothers Co. v. Commonwealth, 197 Mass. 137 . There is established by this statute a continuing duty to refund the abatement, if and when awarded by the court, by an officer of the Commonwealth different from the one named as the respondent. The duty and obligation thus created are quite irrespective of the particular incumbent of the office of commissioner of corporations and taxation. In case there is a change in the person holding that office during the pendency of the complaint, no amendment is necessary substituting his successor as respondent. Knights v. Treasurer & Receiver General, 236 Mass. 336 , at page 339, where cases are collected. The complainant's motion for such amendment should be denied.

The tax in controversy was assessed in 1920 at the rate of two and one half per cent in respect of income received during the preceding year by the complainant as associate professor in "Harvard University." One and one half per cent was assessed in accordance with St. 1916, c. 269, Section 5 (b). This tax is conceded to have been valid. A further tax of one per cent, amounting to $10.99, was levied under St. 1919, c 324. It was provided by Section 1 of that act that in addition to other income taxes theretofore required, "an additional tax of one per cent on all income received during the calendar years nineteen hundred and eighteen and nineteen hundred and nineteen, taxable under the provisions of paragraph (b) of section five of the said chapter" should be levied.

The contention of the complainant is (1) that the income on which he has been taxed is "not derived from property," as those words are used in the Forty-fourth Amendment to the Constitution; (2) that under that amendment income not derived from property cannot be taxed at a higher rate than any income derived from property; and...