Tilcon Massachusetts, Inc. v. Commissioner of Revenue, 89-P-747

• Decision Date: 19 March 1991
• Docket Number: No. 89-P-747,89-P-747
• Citation: 30 Mass.App.Ct. 264,568 N.E.2d 1152
• Parties: TILCON MASSACHUSETTS, INC. v. COMMISSIONER OF REVENUE.
• Court: Appeals Court of Massachusetts

Page 1152

568 N.E.2d 1152

30 Mass.App.Ct. 264

TILCON MASSACHUSETTS, INC. v. COMMISSIONER OF REVENUE.

No. 89-P-747.

Appeals Court of Massachusetts Suffolk.

Argued Nov. 13, 1990.

Decided March 19, 1991.

Andrew J. McElaney, Jr. (Michael L. Chinitz with him), Boston, for plaintiff.

Mary C. Connaughton, Asst. Atty. Gen., for Commissioner of Revenue.

Before PERRETTA, DREBEN and KASS, JJ.

KASS, Justice.

One of the verities of tax practice in Massachusetts is that an application for abatement of taxes, to be timely filed, must be placed in the hands of the assessors or the Commissioner of Revenue, as the case may be, before expiration of the deadline date. Mailing it on the deadline date is not good enough if the application for abatement arrives after the due date. We are invited to reexamine that rule in the context of State as compared to local taxation, and in the light of comparatively recent directives concerning the filing of State tax returns.

We sketch the facts behind the controversy. On February 27, 1987, the Appellate Tax Board (ATB) issued its decision in United States Shoe Corp. v. Commissioner of Rev., 8 Mass.App. Tax Bd. Rep. 47, 1987 WL 50070 (Butterworth 1987), having to do with combined tax returns filed under G.L. c. 63, § 32B, a ruling later affirmed in General Elec. Co. v. Commissioner of Rev., 402 Mass. 523, 524 N.E.2d 90 (1988). The ATB's decision entitled the taxpayer, Tilcon Massachusetts, Inc. (Tilcon), to claim a reduction in the excise taxes it had paid for the tax year ending December 31, 1984, and, to that end, to file an application for an abatement of $274,210 in those taxes. The deadline for so doing is prescribed in G.L. c. 62C, § 37, thus: "Any person aggrieved by the assessment of a tax ... may apply in writing to the commissioner, on a form approved by him, for an abatement thereof at any time within three years from the last day for filing the return for such tax." G.L. c. 62C, § 37, as amended by St.1978, c. 514, § 125. The last day for Tilcon to file its 1984 return was March 15, 1985. Consequently, the last day on which to apply for an abatement was March 15, 1988.

Tilcon's tax papers were prepared and filed from the office of its corporate parent in New Britain, Connecticut. The application for abatement was dispatched by certified mail to the Commissioner on March 14, 1988, and received by the Commissioner March 18, 1988, three days late. For the reason that it had been untimely made, the Commissioner denied the application for abatement. Tilcon appealed to the ATB, which affirmed the action of the Commissioner and dismissed the appeal. From that decision, Tilcon now further appeals. In its brief, Tilcon aptly states that the only issue is whether a "postmark rule," which takes the date of the postmark as the date of filing, shall govern applications for abatement under G.L. c. 62C, § 37.

As remarked at the beginning of this opinion, the rule is long entrenched that applying for an abatement connotes placing the application in the hands of the authority which is to consider it. See Old Colony R.R. v. Assessors of Quincy, 305 Mass. 509, 513-514, 26 N.E.2d 313 (1940); Assessors of Brookline v. Prudential Ins. Co. of America, 310 Mass. 300, 308, 38 N.E.2d 145 (1941); New Bedford Gas &amp Edison Light Co. v. Assessors of Dartmouth, 368 Mass. 745, 747-748, 335 N.E.2d 897 (1975); SCA Disposal Servs., Inc. v. State Tax Commn., 375 Mass. 338, 341, 376 N.E.2d 572 (1978); Assessors of Marlborough v. Commissioner of Rev., 383 Mass. 876, 419 N.E.2d 289 (1981); Roda Realty Trust v. Assessors of Belmont, 385 Mass. 493, 495-496, 432 N.E.2d 522 (1982); Shea v. Commissioner of Rev., 390 Mass. 1001, 455 N.E.2d 1199 (1983). Guzman v. Assessors of Oxford, 24 Mass.App.Ct. 118, 120, 506 N.E.2d 1168 (1987). So established had the rule become that the Marlborough and Shea decisions were cast as rescript opinions, a form generally reserved for settled doctrine. Schulte v. Director of the Div. of Employment Sec., 369 Mass. 74, 79-80, 337 N.E.2d 677 (1985), a leading case on the subject of procedural time limits, cites to cases involving late tax abatement applications as examples of administrative appeals whose dismissal was understandable and acceptable. Failure to apply for an abatement on the right form has provoked similar severity, i.e., dismissal. See Assessors of Boston v. Suffolk Law Sch., 295 Mass. 489, 495, 4 N.E.2d 342 (1936); Commissioner of Corps. and Taxn. v. St. Botolph Club, Inc., 321 Mass. 269, 279, 72 N.E.2d 518 (1947); Aetna Life Ins. Co. v. Commissioner of Corps. and Taxn., 323 Mass. 657, 659-661, 84 N.E.2d 1 (1949).

The rationale advanced for this exacting attitude is that the remedy of abatement is a statutory one, for which the statute has devised precise procedures. If any of the procedures so prescribed is not complied with, the taxpayer loses the remedy. Old Colony R.R. v. Assessors of Quincy, 305 Mass. at 511-513, 26 N.E.2d 313. Singer Sewing Mach. Co. v. Assessors of Boston, 341 Mass. 513, 516, 170 N.E.2d 687 (1960). New Bedford Gas & Edison Light Co. v. Assessors of Dartmouth, 368 Mass. at 748, 335 N.E.2d 897. Also implicit in the cases is the idea that delivery in hand prior to the statutory deadline is necessary to give the taxing authority notice of impending liability. See Assessors of Brookline v. Prudential Ins. Co., 310 Mass. at 312, 38 N.E.2d 145; MacDonald v. Assessors of Mashpee, 381 Mass. 724, 726, 412 N.E.2d 336 (1980); SCA Disposal Servs., Inc. v. State Tax Commn., 375 Mass. at 341, 376 N.E.2d 572. Perhaps the force of those reasons for a rule of rigid compliance is less than irresistible, but the rule has gained strength through repetition and is exceptionally well settled.

To break the rule's grip so far as corporate excise taxes are concerned, Tilcon advances two arguments: first, the strict compliance rule was formulated in relation to local, i.e., municipal, property taxes and should be confined to them; second, other statutory material, as well as a regulation and a directive from the Department of Revenue, have authorized "postmark filing," producing a confusing procedural map whose uncertainties ought to be resolved in favor of the taxpayer.

The first argument, that the delivery-in-hand requirement for effecting an application for a tax abatement does not pertain to corporate excise taxes, begins to come apart when one compares the statutory language of G.L. c. 59, § 59, which authorizes applications for local real estate tax abatements, with G.L. c. 62C, § 37, which authorizes applications for corporate excise tax abatements. The first sentence of the former, G.L. c. 59, § 59, as appearing in St.1963, c. 125, provides that, "A person upon whom a tax has been assessed ... if aggrieved by such tax, may ... apply in writing to the assessors, on a form approved by the commissioner, for an abatement thereof...." That is the language upon which the Old Colony R.R. case, supra, and its progeny are based. The latter, G.L. c. 62C, § 37, provides that: "Any person aggrieved by the assessment of a tax ... may apply in writing to the commissioner, on a form approved by him, for an abatement thereof...." The operative words of the two statutes are virtually identical. If essentially the same statutory language should lead to the same result, see Webster v. Board of Appeals of Reading, 349 Mass. 17, 19, 206 N.E.2d 92 (1965), nothing appears in the State tax abatement provision which gives Tilcon any hope. In this instance, there is especial significance to the virtually identical language because G.L. c. 62C, § 37, regarding State taxes, was inserted by St.1976, c. 415, § 22, as part of a comprehensive revision and recodification of administrative provisions relating to State taxation. In light of the well understood secondary meaning which the words "apply in writing ... for an abatement" had acquired by that time, we may conclude that the Legislature contemplated no change in what needed to be done to effect a timely application for abatement of State taxes, i.e., the Legislature adopted the judicial construction. Commonwealth v. Benoit, 346 Mass. 294, 297, 191 N.E.2d 749 (1963). Barlow v. Wareham, 401 Mass. 408, 411, 517 N.E.2d 146 (1988).

Decisional law deals the taxpayer no better hand because there are cases in which the "timely when received" criterion has been applied in a State excise tax context. Shea v. Commissioner of Rev., 390 Mass. at 1001, 455 N.E.2d 1199, dealt with an application for abatement and rejected mailing before the deadline as sufficient. For cases that reject mailing as sufficient performance of a notice requirement in other contexts, see Assessors of Sandwich v. Commissioner of Rev., 382 Mass. 689, 414 N.E.2d 1005 (1981); Assessors of Marlborough v. Commissioner of Rev., 383 Mass. 876, 419 N.E.2d 289 (1981); SCA Disposal Servs., Inc. v. State Tax Commn., 375 Mass. at 340-342, 376 N.E.2d 572. As to a case in which no distinction was drawn between the procedural requirements of local property taxes and State taxes, see Aetna Life Ins. Co. v. Commissioner of Corps. & Taxn., 323 Mass. 657, 660, 84 N.E.2d 1 (1949).

We come then to Tilcon's argument that the "postmark rule" so pervades State tax procedure that taxpayers ought to be able to rely on it. At the core of the contention is the idea that a statutory scheme ought not to set traps for the unwary. See Becton, Dickinson & Co. v. State Tax Commn., 374 Mass. 230, 233, 372 N.E.2d 1254 (1978). In support of its argument, Tilcon points first to G.L. c. 62C, § 33A, inserted by St.1976, c. 415, §...