294 Mass. 485 | Mass. | 1936
This is a suit in equity to enjoin the collection of an excise tax on the sale of' alcoholic beverages alleged to be due to the Commonwealth from the plaintiff as a licensee. The allegations of the bill in substance are these: The plaintiff is a corporation engaged and licensed as a wholesale dealer in buying and selling alcoholic beverages. As required by G. L. c. 138, § 21 (as it appears in St. 1933, c. 376, § 2), the plaintiff filed its excise tax returns for January to June, inclusive, 1934, and has paid the excise taxes for those months on its sales within the Commonwealth on the basis of "forty cents for each proof gallon of all alcoholic beverages containing in excess of twenty-four per cent of alcohol by volume”; said § 21
The allegations in the bill touching matters of law are not admitted by the demurrer. They need not be considered. Only the facts well pleaded in the bill are admitted for the purpose of this decision.
The general principle has been repeatedly declared in this Commonwealth that a suit in equity will not lie to restrain the collection of a tax. Commonly other remedies, such as abatement, special statutory proceedings, or action
The plain, if not the necessary, implication from the allegations of the bill is that the additional tax is assessed under color of the amendment to the preexisting statute wrought by St. 1934, c. 385, § 13. If that be so, there is in the final clause of that section provision for relief from an unwarranted or excessive excise by abatement. It is alleged in the bill that the plaintiff has filed an application for abatement and that it is ignorant whether relief can be accorded by that proceeding. In any event, undoubtedly action would lie against the defendant personally for sums collected by him illegally from the plaintiff. The defence of illegality would be open to the plaintiff in proceedings which, as alleged in the bill, have been threatened by the defendant to collect additional taxes. It is not necessary to consider whether in the event of no other remedy the excise tax, if unlawful and paid under compulsion, might be recovered under G. L. (Ter. Ed.) c. 258. Preston v. Boston, 12 Pick. 7. Boston & Sandwich Glass Co. v. Boston, 4 Met. 181, 189. Nash v. Commonwealth, 174 Mass. 335, 339. McArthur Brothers Co. v. Commonwealth, 197 Mass. 137.
It may be that extraordinary and exceptional circumstances may arise which will justify the interposition of equity to prevent the collection by public officials of sums asserted without right to be due as taxes. Hill v. Wallace, 259 U. S. 44, 62. Miller v. Standard Nut Margarine Co. of Florida, 284 U. S. 498, 509. Rickert Rice Mills, Inc. v. Fontenot, 297 U. S. 110. No circumstances are set forth in
Interlocutory decree affirmed.
Final decree affirmed.