311 Mass. 415 | Mass. | 1942
On January 1, 1937, certain real estate in the city of Boston was owned by Mathew and Annie Ambrose. The local property tax upon such real estate was assessed to them as of that date. See G. L. (Ter. Ed.) c. 59, § 11, as appearing in St. 1936, c. 92. The real estate was subject to a mortgage to the Boston Five Cents Savings Bank, herein referred to as the bank, which became the owner thereof on May 19, 1937, by purchase at a foreclosure sale under its mortgage. The time for filing appli
The ruling of the Appellate Tax Board was right.
Proceedings for abatement are statutory. Such a proceeding must be commenced by an application conforming to statutory requirements or the Appellate Tax Board is without jurisdiction of the proceeding. Assessors of Boston v. Suffolk Law School, 295 Mass. 489, 492-493. Choate v. Assessors of Boston, 304 Mass. 298, 301-302. Assessors of Brookline v. Prudential Ins. Co. 310 Mass. 300, 303. Assessors of Boston v. Neal, ante, 192, 193. As the law stood prior to the amendment of G. L. (Ter. Ed.) c. 59, § 59, by St. 1933, c. 165, § 1, a person in the position of the bank could not have filed an application for abatement in his own name. By said § 59 prior to the amendment an application for. abatement could have been filed only by a person “aggrieved by the taxes assessed upon him” or, in some circumstances, by a “tenant of real estate paying rent therefor.” Mechanics Savings Bank v. Collector of Taxes of Holyoke, 299 Mass. 404, 408-409, and cases cited. Choate v. Assessors of Boston, 304 Mass. 298, 302. The right of the bank to prosecute a proceeding for abatement, though it became the owner of the real estate in question on May 19,1937, depends upon the provision added to G. L. (Ter. Ed.) c. 59, § 59, by St. 1933, c. 165, § 1, that “If a person other than the person to whom a tax on real estate
By the provision added to G. L. (Ter. Ed.) c. 59, § 59, by St. 1933, c. 165, § 1, above quoted, the right to apply for an abatement was granted to “a person other than the person to whom a tax on real estate is assessed” only where such other person “is the owner thereof, or has an interest therein, or is in possession thereof, and pays the tax.” This provision was a modification of the general principle previously applicable that only a person upon whom a tax had been assessed — or a tenant paying rent — could apply for an abatement. The modification, however, does not extend to every “owner” of real estate who has not been assessed, but extends only to an “owner” who “pays the tax.” Notwithstanding the fact that an “owner” holds the real estate subject to a lien for the tax (G. L. [Ter. Ed.] c. 60, § 37, as amended), the Legislature did not see fit to give to such an “owner” the remedy of abatement unless he paid the tax. The words “and pays the tax” in the phrase “is the owner thereof, or has an interest therein, or is in possession thereof, and pays the tax” are a part of the description of the persons in whose favor an exception to the general principle is made by St. 1933, c. 165, § 1, amending G. L. (Ter. Ed.) c. 59, § 59. The provision made by this amendment has no application to an “owner” who has not paid the tax. Apart from this provision such an “owner” has no right even to file an application for abatement in his own name which is the commencement of a proceeding for abatement. And by the express language of the provision
The payment of the tax by the bank on September 29, 1937, gave the bank no right to “prosecute” the application for abatement previously filed. By the provision added to G. L. (Ter. Ed.) c. 59, § 59, by St. 1933, c. 165, § 1, an owner paying the tax “may thereafter prosecute in his own name any application, appeal or action provided by law for the abatement or recovery of such tax.” But there was no such application. The application filed by the bank was not an “application . . . provided by law.” It had been filed without authority of law by a person not entitled to apply for abatement. And the appeal to the Appellate Tax Board by the bank was not an “appeal . . . provided by law,” for there can be no such appeal not based upon an “application . . . provided by law.” The bank was not aggrieved by the failure of the assessors to pass upon its application that had no standing. See G. L. (Ter. Ed.) c. 59, § 65, as amended. Choate v. Assessors of Boston, 304 Mass. 298, 305. And the record does not disclose that any application for abatement had been filed by any person other than the bank. Consequently, we need not consider whether the governing statute would permit the prosecution by the bank of a proceeding for abatement, at any stage, that had been duly commenced by the person to whom the tax was assessed. See Choate v. Assessors of Boston, 304 Mass. 298, 303. The appeal of the bank, therefore, was not rightly before the Appellate Tax Board.
The statute here in question making payment of the tax
It is urged by the bank that, since the time for applying for abatement did not expire until October 1, 1937, it might
The result here reached is in a sense technical. It may well be said that neither the assessors of the city nor the city itself was in any way prejudiced by the fact that the tax in question was not paid until six days after the application for abatement was filed. But a like argument might be made with respect to many restrictions upon the statutory right of abatement. Yet it cannot prevail against a clear legislative mandate. And the requirement of payment of the tax before a proceeding for abatement can be commenced is not so unreasonable that the statute is not to be given its natural meaning as imposing such a condition. See Assessors of Boston v. Suffolk Law School, 295 Mass. 489, 494.
It is unnecessary to discuss in detail the amendment of G. L. (Ter. Ed.) c. 59, § 59, by St. 1939, c. 250, § 1, giving a “holder of a mortgage” a right in some circumstances to apply for abatement. Apart from the fact of the time when this amendment became effective, the bank was not within the scope of the amendment, since neither at the time the bank applied for abatement nor at any time thereafter was the bank a “holder of a mortgage.”
Appeal to the Appellate Tax
Board dismissed.