Wynn v. Bd. of Assessors of Boston

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: FIELD
• Citation: 183 N.E. 528,281 Mass. 245
• Parties: WYNN v. BOARD OF ASSESSORS OF BOSTON.
• Decision Date: 13 December 1932

281 Mass. 245
183 N.E. 528

WYNN
v.
BOARD OF ASSESSORS OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 13, 1932.

Appeal from Supreme Judicial Court, Suffolk County.

Proceeding by Charles S. Wynn by way of appeal to the Board of Tax Appeals from a denial of the Board of Assessors of Boston of petition to abate a tax. From an adverse decision of the Board of Tax Appeals, the taxpayer appeals.

Abatement of tax ordered in accordance with opinion.

[281 Mass. 246]H. Stockton, Jr., of Boston, for petitioner.

C. E. Fay, Asst. Corp. Counsel, of Boston, for respondent.

FIELD, J.

This is an appeal by a taxpayer from a decision of the Board of Tax Appeals refusing an abatement of a tax for the year 1930 on real estate in the city of Boston. The tax was assessed upon a valuation of $60,000. The board found, if material, that the real estate was overvalued to the amount of $25,000 and that if the taxpayer was entitled to an abatement the amount thereof would be $770, but decided that he was not so entitled because he had not filed a list of his personal property. Whether this decision was correct is the only question for our consideration.

The tax was paid September 29, 1930. Application for abatement was made April 1, 1931. As more than four months passed without a decision by the assessors the application was deemed to be denied. G. L. (Ter. Ed.) c. 58A, § 6. The taxpayer appealed to the board August 13, 1931.

The taxpayer has filed no list of personal property. There was no evidence that the notice required by G. L. (Ter. Ed.) c. 59, § 29, was given by the assessors or that the taxpayer on April 1, 1930, owned any taxable personal property in Boston. It is not contended that the application for abatement

[183 N.E. 529]

did not include ‘a sufficient description of the particular real estate as to which an abatement is requested.’ G. L. (Ter. Ed.) c. 59, §§ 61, 64, 65.

G. L. (Ter. Ed.) c. 59, § 64, authorizes appeals to county commissioners from the refusal of assessors to abate taxes and provides that ‘a tax or assessment upon real estate may be abated whether or not a list of property was brought in within the time specified by the notice required by section twenty-nine; provided, that the application for an abatement of such a tax or assessment included a sufficient description of the particular real estate as to which an abatement is requested,’ and section 65 authorizes appeals to the Board of Tax Appeals, subject to the same conditions. The provision quoted was placed in the statute by St. 1931, [281 Mass. 247]c. 150, § 3, amending G. L. c. 59, § 64, and taking effect March 31, 1931. Before this amendment G. L. c. 59, § 64, provided that ‘if the list required to be brought in to the assessors was not brought in within the time specified in the notice required by section twenty-nine, the tax shall not be abated unless the appellate board finds good cause for the delay or unless the assessors have so found as provided in section sixty-one.’ A like change with respect to abatements by assessors was made in G. L. c. 59, § 61, by St. 1931, c. 150, § 2. No express statutory provision kept alive the statutes in force before March 31, 1931, as applied to any class of cases.

If the amendment made by St. 1931, c. 150, § 3, is applicable to the present case the taxpayer is entitled to the abatement. In our opinion the amendment is applicable thereto.

We assume, in favor of the assessors, if material, that they gave the notice to bring in lists of personal property required by section 29, that the time therein specified expired before the amendment took effect, and that the taxpayer on April 1, 1930, owned personal property taxable in Boston. See Winnisimmet Co. v. Chelsea, 6 Cush. 477, 483, 484;Masonic Education & Charity Trust v. Boston, 201 Mass. 320, 326, 87 N. E. 602. The amendment of the section dealing with abatements by the appellate board, as well as that dealing with abatements by the assessors, was in force not only when the appeal was taken to the Board of Tax Appeals, but also when the application for abatement was made to the assessors. Consequently the effect of a change in the statute after an abatement had been refused by the assessors need not be considered. Compare Otis Co. v. Ware, 8 Gray, 509, 510. The narrow question for decision is whether the change in the statute applies to an application for an abatement made after its effective date, though the time for filing lists had expired before that date.

Sections 61 and 64 of G. L. c. 59, both before and after amendment by St. 1931, c. 150, §§ 2 and 3, are in form procedural. They do not purport to affect the substantive right of the taxpayer to be assessed upon ‘ a fair cash valuation’[281 Mass. 248]of his taxable property (G. L. [Ter. Ed.] c. 59, § 38), but purport merely to prescribe the conditions under which an abatement may be granted if he is found to be ‘taxed at more than his just proportion, or upon an assessment of any of his property in excess of its fair cash value.’ G. L. (Ter. Ed.) c. 59, § 59. See Lowell v. County Commissioners, 152 Mass. 372, 375, 25 N. E. 469,9 L. R. A. 356. Lists which, under G. L. (Ter. Ed.) c. 59, § 29, assessors may or must by notice require taxpayers to bring in are for the assistance of the assessors in performing their duties (see Boston Rubber Shoe Co. v. Malden, 216 Mass. 508, 510, 104 N. E. 478) and the protection of taxpayers against assessments on property which they do not own. G. L. (Ter. Ed.) c. 59, § 35. But no penalty is provided for failure to bring in such lists except that by such a failure a taxpayer submits himself to ‘the doom of the assessors' (Lincoln v. Worcester, 8 Cush. 55, 64;G. L. [Ter. Ed.] c. 59, § 36) and is deprived of full remedy by abatement. The exclusive remedy for overassessment of real or personal property is the statutory proceeding for abatement. Central National Bank v. Lynn, 259 Mass. 1, 6, 7, 156 N. E. 42, Id.,266 Mass. 145, 164 N. E. 927. Additional remedies are available where the tax is wholly illegal. See Milford Water Co. v. Hopkinton, 192 Mass. 491, 498, 78 N. E. 451. Recovery back of such a tax may be had by an ‘action,’ but by the terms of the governing statute such ‘action’ must be brought within the time prescribed, and one other of several conditions precedent must be complied with. G. L. (Ter. Ed.) c. 60, § 98. Knowles v. Boston, 129 Mass. 551. Bringing in a list, however, is not one of those conditions, and an illegal tax may be recovered back in such an ‘action’ even if no list was brought in. Williams v. Action, 219 Mass....