310 Mass. 300 | Mass. | 1941
Eleven parcels of real estate in the town of Brookline were assessed to the Prudential Insurance Company of America, herein referred to as the taxpayer, as of January 1, 1936. The taxpayer applied to the assessors for an abatement of the tax assessed upon each of those parcels, and a partial abatement of the tax on each parcel was granted by the assessors. The taxpayer, claiming further abatements, appealed to the Board of Tax Appeals — now the Appellate Tax Board, to which the jurisdiction of the former board was transferred by statute. G. L. (Ter. Ed.) c. 59, § 65, as amended. G. L. (Ter. Ed.) c. 58A, as amended. St. 1937, c. 400. See § 4.
The assessors moved to dismiss the taxpayer’s appeals “on the ground that the Appellate Tax Board has no jurisdiction, since the appellant’s purported applications for abatement, copies of which are hereto annexed, are not applications 'in writing to the assessors, on a form approved by the commissioner, for an abatement’ of the taxes assessed as required by G. L. (Ter. Ed.) c. 59, § 59.” See said section as appearing in St. 1933, c. 266, § 1, and amended by St. 1935, c. 187, § 1. See now St. 1939, c. 250, § 1. The Appellate Tax Board found the facts relating to this motion, denied the motion, and granted further abatements. The assessors appealed from the decision of the Appellate Tax Board. G. L. (Ter. Ed.) c. 58A, § 13, as amended.
The only question presented by the appeal is whether the assessors’ motion to dismiss the appeals of the taxpayer from the decision of the assessors was denied rightly.
1. General Laws (Ter. Ed.) c. 59, § 59, as amended (see St. 1935, c. 187, § 1), provided, at the time the taxpayer
2. The assessors contend that, by reason of noncompliance with the statute requiring that an application to the assessors for abatement shall be “on a form approved by the commissioner,” the appeals to the Appellate Tax Board should have been dismissed on the ground that the board, for this reason, had no jurisdiction of the appeals. For support of this contention the taxpayer relies upon the case of Assessors of Boston v. Suffolk Law School, 295 Mass. 489. In that case there was no finding and no evidence that the application was in fact on a form approved by the commissioner and this court held that “the requirement of an application for abatement in the prescribed form is jurisdictional and, since it does not appear that such an application was made by this taxpayer, its appeal to the board of tax appeals [now the Appellate Tax Board] should have been dismissed by the board.” In this connection the court said that neither “expressly nor by fair implication is authority conferred on assessors or on the board of tax appeals to abate a tax if no such application was made.” Page 498. The court also said that the "lack of an application in the statutory form is not excused by the good faith of the taxpayer, or acceptance by the assessors of an application in some other form nor by the fact that the assessors are not inconvenienced or misled. Such considerations are material on the issue whether an application meets the requirements of the statute, but do not excuse clear noncompliance with these requirements.” Page 494.
3. The assessors, though now contending that the applications of the taxpayer did not comply with the statute, previously accepted them and granted abatements thereon.
4. Prior to the amendment of G. L. (Ter. Ed.) c. 59, § 59, by St. 1933, c. 266, § 1, which first included in this section the requirement that the application should be “in writing ... on a form approved by the commissioner,” an oral application for abatement was sufficient. Page v. Melrose, 186 Mass. 361. Shawmut Mills v. Assessors of Fall River, 271 Mass. 358, 359-360. The statute, however, fixed the time within which such application should be made. See G. L. (Ter. Ed.) c. 59, § 59. See also St. 1933, c. 254, § 43, c. 266, § 1; St. 1934, c. 136, § 2; St. 1935, c. 187, § 1; St. 1939, c. 250, § 1. A “seasonable application in some form was essential to jurisdiction of the assessors and of appellate tribunals of a proceeding to abate a tax.” Assessors of Boston v. Suffolk Law School, 295 Mass. 489, 493. But an oral application seasonably made to the chairman of the board of assessors acting in his official capacity and so received by him was held in the Shawmut Mills case to constitute a sufficient application. See pages 360-361.
5. Statutory prerequisites to abatement, at the times here material, other than an application “in writing . . . on a form approved by the commissioner,” required by G. L. (Ter. Ed.) c. 59, § 59, as amended, were fixed by G. L. (Ter. Ed.) c. 59, § 61, as amended by St. 1933, c. 165, § 2; by § 64, as amended by St. 1933, c. 130, § 1 (see now St. 1938, c. 478, § 1; St. 1939, c. 31, § 6); and by § 65, as amended by St. 1933, c. 130, § 2, c. 167, § 1 (see now St. 1939, c. 31, § 7). These statutes are summarized in a footnote.
The effect of St. 1931, c. 150, §§ 2, 3 (see also St. 1933, c. 165, § 2), was to relax the severity of the requirement of a list as a prerequisite to abatement of a tax on real estate where the notice to bring in lists provided for by § 29 required inclusion of real estate in such lists; to substitute, where an applicant for an abatement of a tax on real estate was not required by the notice under said § 29 to include his real estate in his list and had not done so, for the requirement that he “file with his application a list of his real estate, with an estimate of the fair cash value of each parcel,” (see Boston & Albany Railroad v. Boston, 275 Mass. 133, 137-138), a requirement that he include in his application a “sufficient description of the particular real estate as to which an abatement is requested”; and to require the inclusion of such a “sufficient description” in all applications for abatement of taxes on real estate, whether or not the applicant had been required by the notice under § 29 to include his real estate in the list. See Wynn v. Assessors of Boston, 281 Mass. 245, 250.
6. It is obvious that the provision of G. L. (Ter. Ed.) c. 59, § 59, as amended, requiring an application for abatement to be “in writing ... on a form approved by the commissioner” is to be read with the provisions of §§ 61, 64, as amended, requiring inclusion in an application of a “sufficient description ... of the particular real estate.” This is true notwithstanding the fact that St. 1933, c. 266, § 1, which first inserted in said § 59 the provision that the application be “in writing ... on a form approved by the commissioner,” was passed after the passage of the statutes requiring the inclusion in an application of such a “suffi
9. In determining what information is expressly or impliedly required by statute to be included in an application, regard must be had to the nature of an application. A proceeding for abatement is purely a statutory proceeding. Hamilton Manuf. Co. v. Lowell, 274 Mass. 477, 483. The provision for an application is procedural. An application is a constituent part of the statutory remedy. See Wynn v. Assessors of Boston, 281 Mass. 245, 247-249. It is the method by which the statutory proceeding is begun. The proceeding must be begun by a proper application within the period fixed by the statute, which is somewhat like a short statute of limitations, though “the time within which the application is to be made is not a mere matter of limitation but is an integral part of the right, and the failure to apply within the prescribed time destroys the right.” Old Colony Railroad v. Assessors of Quincy, 305 Mass. 509, 511-512. In Shawmut Mills v. Assessors of Fall River, 271 Mass. 358, 361, the application was treated as comparable to a “notice,” the purpose of which was “to give information to an official board representing a town, in reference to a possible pecuniary liability.” Though that case was decided at a time when an oral application was sufficient — when the “usual course of proceedings upon applications to assessors for abatement . . . [was] entirely informal” (Page v. Melrose, 186 Mass. 361, 363-364), the general purpose of an application has not changed by reason of the more formal requirements of St. 1933, c. 266, § 1. While in this aspect an application is a notice, it is referred to in the statutes as a request. In G. L. (Ter. Ed.) c. 59, §§ 61, 64 (see St. 1931, c. 150, §§ 2, 3; St. 1933, c. 165, § 2) the “sufficient description” that is to be included in the application is of the real estate with respect to which “an abatement is requested.”
Such a notice or request is in the nature of a claim for
An application for abatement is directed to the official board that made the original assessment. It seeks revision by that board of its original action which was taken without the person assessed having an opportunity for a hearing, except as he had such an opportunity if the assessors were unwilling to accept his list as true and requested him “to answer on oath all necessary inquiries as to the nature and amount of his property.” G. L. (Ter. Ed.) c. 59, § 35. See Moors v. Street Commissioners of Boston, 134 Mass. 431, 432. In no event — unless by statutes not here material — is a person assessed required by statute to furnish information or evidence as to the value of his property as a preliminary to the original assessment. See Assessors of Quincy v. Boston Consolidated Gas Co. 309 Mass. 60, 70-72, and cases cited. “It is the duty of the assessors within reasonable limits to seek light from every available source bearing on the 'fair cash value’ of all property to be assessed by them for purposes of taxation.” Tremont & Suffolk Mills v. Lowell, 271 Mass. 1, 18. Compare, when no list has been brought in, G. L. (Ter. Ed.) c. 59, § 36; Harrington v. Glidden, 179 Mass. 486, 493-494. See also Newburyport v. County Commissioners, 12 Met. 211, 219-221. And when a person assessed sought a revision of an assess
Considering the statutes relating to abatements as a whole, in the light of their history, we are of the opinion, expressed in general terms, that the information to be included in an application for abatement of a tax on real estate, at the risk that if not so included the application cannot be considered, is such information as will adequately inform the assessors that a claim for abatement of a tax upon real estate therein referred to is being made by a person entitled to apply for such abatement, with a "sufficient description of the particular real estate as to which an abatement is requested.” So far as the statutory proceeding is analogous to an action at common law (see Sears v. Nahant, 215 Mass. 234, 240) the application is in the nature of pleading rather than of presentation of evidence. Clearly this was the nature of an application before the passage of St. 1933, c. 266, § 1, and if the Legislature had intended by that statute to transform the nature of an application so completely as to make it a presentation of evidence it would hardly have left such an intention to mere inference from a provision requiring an application to be “on a form approved by the commissioner.” This is particularly true when such an inference would subject taxpayers to additional risks of losing their rights to prosecute applications for abatement beyond those to which they are subjected by express or necessarily implied statutory requirements. Compare Assessors of Boston v. Suffolk Law School, 295 Mass. 489. See also Central National Bank v. Lynn, 259 Mass. 1, 3-5. Tax laws "should be construed and interpreted as far as possible so as to be susceptible of easy comprehension and not likely to become pitfalls for the unwary.” Hemenway v. Milton, 217 Mass. 230, 233.
Of course we do not purport in this opinion to describe in detail the information that an applicant for abatement may be required to include in his application at the risk
10. We now consider, in the light of the interpretation of the statutes above made, whether the applications for abatement in the present case were insufficient, as matter of law, by reason of the failure of the applicant to answer certain questions upon the form approved by the commissioner. The Appellate Tax Board found as a fact, so far as it is a matter of fact, that the applications “were a substantial compliance with the statute.” We interpret this to mean that in all material particulars the statutory requirement that an application be “on a form approved by the commissioner” was complied with. We think that this finding was not vitiated by error of law.
The questions on the form that were not answered may be grouped in four classes, though some of them might conceivably fall in more than one of these classes.
a. The matter of a “sufficient description” of the “particular real estate” to which the several applications relate is of major importance. Each application, in answer to specific questions, described the real estate therein referred to as a three-story apartment house containing six apartments located at a given number on a designated street. The purpose of a “sufficient description” in an application for an abatement, as appears from the history of the legislation relating to abatements, is the same with respect to an abatement as that of the list referred to in G. L. (Ter. Ed.) c. 59, § 29, with respect to an original assessment. And such a list was defined in West Boylston Manuf. Co. v. Assessors of Easthampton, 277 Mass. 180, 186, as “an enumeration, description and other particularization of the property in sufficient detail to convey to the assessors, presumed in general to be familiar with the outstanding features of their respective municipalities, a reasonable understanding of the extent and nature of the subject to which it
b. Many questions in each application that were not answered relate to a description of the real estate in a broad sense, but they bear particularly on its value. So far as they relate to a description as such, the failure to answer them did not vitiate the application, since, without answers to them, it could be found that such application contained a “sufficient description” of the particular real estate. And so far as the questions bear upon the value of the real estate, the applicant, for reasons already stated, was not required to include in its application information or evidence as to such value. It is to be observed, however, that in each application is included an answer to the question “Total rentals if fully rented.”
c. The approved form recognizes several distinct classes of buildings such as “Dwelling,” “Apartment,” “Business,” “Manufacturing,” “Garage,” and contains questions relating specifically to each class. The answer in these applications to the question “Class of building” is “Apartment House.” Obviously the form does not require answers to questions relating to other classes of buildings.
d. Each application contains questions as to the assessed value of the land, the assessed value of the buildings, and the total assessed valuation. Only the last of these was answered. And the question: “Is the objection based on the valuation of the land or of the building?” was not answered. The tax on a parcel of land and the building thereon is one tax. Massachusetts General Hospital v. Somerville, 101 Mass. 319, 327-328. The land and the building “cannot be separated for the purpose of collecting taxes,” although for statistical purposes they may be valued
11. It follows that there was no error in the decision of the Appellate Tax Board in denying the assessors’ motion to dismiss. Since no other question of law is presented by the appeal, the decision of the Appellate Tax Board granting an abatement in the amount of $746.40 must stand.
Abatement granted to the taxpayer in the amount of $7J¡.6.Jfi with interest thereon from the date of payment thereof with costs.
1. Age of building, date of construction, block and lot. 2. The assessed value of the land. 3. The assessed value of the buildings. 4. The year in which the property was acquired. 5. The full consideration. 6. From whom the property was acquired. 7. Whether by private sale or auction. 8. Cost as specified in building permit, contract price and completed cost. 9. Date and character of alterations. 10. Cost of alterations. 11. Type of construction. 12. Condition of building. 13. The rent per apartment. 14. Whether the property is partly or entirely rented. 15. Name of lessee. 16. How used by lessee. 17. Value of lease, terms of lease, date of expiration. 18. Net income. 19. Whether the property is mortgaged and, if so, the amount of the mortgage and other indicated information. 20. Whether any mortgage on the property had been made or renewed or become due within the past three years and, if so, the circumstances. 21. The amount of fire insurance. 22. Whether the objection to the valuation is based on the valuation of the land or of the building. 23. A complete statement of reasons for the application. 24. Contentions of law raised.
In addition various questions which do not appear to relate to the type of property in question were not answered.
General Laws (Ter. Ed.) c. 59, § 61, as amended by St. 1933, c. 165, § 2, provided that a “person shall not have an abatement of a tax imposed upon his personal property subject to taxation, except as otherwise provided, unless he has brought in to the assessors a list of his personal estate as required by section twenty-nine. If such a list of his personal estate is not