Small Business Administration v. Board of Assessors of Falmouth

• Decision Date: 04 January 1963
• Citation: 345 Mass. 294,186 N.E.2d 917
• Parties: SMALL BUSINESS, ADMINISTRATION v. BOARD OF ASSESSORS OF FALMOUTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 917

186 N.E.2d 917

345 Mass. 294

SMALL BUSINESS, ADMINISTRATION v. BOARD OF ASSESSORS OF FALMOUTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 4, 1962.

Decided Jan. 4, 1963.

Robert J. Owens, Boston, for taxpayer.

No argument nor brief for Board of Assessors of Falmouth.

Before WILKINS, C. J., and WHITTEMORE, CUTTER, KIRK and SPIEGEL, JJ.

WILKINS, Chief Justice.

The taxpayer appeals from a decision of the Appellate Tax Board that jurisdiction was lacking to hear an appeal from a refusal of the appellee board of assessors of Falmouth to abate a 1960 tax upon real estate. G.L. c. 58A, § 13, as amended. The tax board filed no opinion. The appellee assessors have filed no brief with us. Accordingly, we cannot know the precise ground of the tax board's decision, but we infer that it related to letters to the tax board from the United States Attorney for the District of Massachusetts which are marked as filed with the clerk of the tax board and are printed in the record. The United States Attorney entered no appearance in the case, and in the first letter expressly disclaimed doing so. The letters cannot be considered as any form of pleading. Their presence in the record, while irregular, offers a possible clue to a reason for the tax board's action.

On January 4, 1961, a petition under formal procedure to abate the tax was filed upon behalf of Small Business Administration (Small Business) as appellant by Mr. Ownes as its attorney. The allegations are that on January 1, 1960, the appellant was the owner of real estate on County Road, North Falmouth, designated as lot F, and consisting of 5.22 acres of land with hotel, house, pool, and accessory buildings ¹; that the assessors valued the property at $131,650 and assessed to Small Business ² a tax of $6,714.15; that the tax with interest was paid on December 23, 1960; and that on September 15, 1960, Small Business filed an application for an abatement which was signed by the director of the Boston regional office. The assessors did not act upon the application within three months of filing. G.L. c. 59, § 64, as amended.

The grounds upon which the appellant claims to be aggrieved are set forth in the petition: (a) overvaluation; and (b) 'the appellant is the agency of the Federal Government created by Act of Congress on July 30, 1953 (United States Code, Title 15, s. 631 et seq., ch. 282, Title II, 67 Stat. 230); made permanent by the Small Business Act of 1958, and under the provisions of G.L. (Ter.Ed.) c. 59, s. 5, clause First, its property is exempt from taxation.'

On January 21, 1960, Small Business conveyed the property to one Evelyn O'Connell 'free and clear of all Federal tax liens, and all tax liens of the Town of Falmouth,' and on the same day she made a lease to Paula S. and Frederick A. Callahan, Jr. ³ The lease contained a provision that the parties 'do not anticipate that any real or personal property assessments are to be levied by the town for 1960, but if an assessment is levied, the lessees covenant to pay the taxes as assessed when due.'

On May 10, 1961, Mr. Owens, as 'her attorney,' filed a motion to amend the petition on behalf of 'Paula S. Callahan, lessee in possession of the subject property and the person who paid the tax * * * by substituting or adding her name as an appellant * * *.' This motion was assented to by counsel for the assessors. On June 14, 1961, there was a hearing on the original petition. At this time two of the three letters, hereinafter described, from the United States Attorney had been received. On November 7, 1961, Paula S. Callahan, 'the person who paid the tax and tenant in possession,' moved that she be permitted to prosecute the appeal in her own name. Both motions were denied on February 5, 1962, the date of the decision that jurisdiction was lacking to hear the appeal. On February 16, 1962, 'the appellant,' that is Small Business, through Mr. Owens, as its attorney, filed a motion to vacate the decision 'on the grounds [sic] that there is no lack of jurisdiction apparent on the pleadings' and asking leave 'to present evidence on all matters requisite to confer jurisdiction' on the tax board. The motion was assented to by Mr. Owens as attorney for Paula S. Callahan, and was denied on February 26, 1962.

To seek some basis for the tax board's decision, we examine letters, three in number, from the United States Attorney. The first letter, dated May 10, 1961, purported to be sent at the instruction of the Department of Justice, and, citing cases, questioned the right of Mr. Owens to act upon behalf of Small Business, and asserted the right of the United States to bring an action in a District Court of the United States to have the taxes declared invalid against the United States 'acting by and through its agency, Small Business Administration.' ⁴ The second letter, dated May 23, 1961, disclaimed any objection to Mr. Owens proceeding on behalf of his own client, 'the present owner and tenant,' advised that the tax assessed by the town on January 1, 1960, 'on property then owned by the Small Business Administration, an agency of the United States,' was invalid, and renewed the threat, 'unless a favorable determination is otherwise made,' to bring an action in the District Court to declare the tax invalid. The third letter, dated February 19, 1962, revoked the effect of the two earlier letters, and stated: 'Upon reviewing the record of this case, it has been determined to withdraw any objection we may have had to the institution of said case on behalf...