273 Mass. 212 | Mass. | 1930
This is a petition for a writ of mandamus to require the respondent to submit a certificate for the approval of the Attorney General for the abatement of an illegal income tax under G. L. c. 58, § 27, as amended by St. 1926, c. 287, § 1. By this section it is provided:
Challenge is made of the right of the petitioner to maintain this form of relief on the facts here disclosed. It becomes necessary to examine somewhat critically governing statutes. The words “ If it shall appear ” in their context naturally mean “ if it shall appear to the tax commissioner.” This interpretation is confirmed by the further provision that the decision of the commissioner and the Attorney General shall be final. The ground upon which certificate may be issued is not illegality alone, but includes also an excessive or unwarranted levy. This remedy is not in modification of other remedies, such as those afforded by G. L. c. 62, §§ 43-47, but is in addition to them. That the tax commissioner is the one to whom reason for abatement must appear is confirmed by the re
The conclusion follows that, where the commissioner was of opinion at all times that there was no illegality in whole or in part in- the tax as levied, and that it was not excessive or unwarranted, and has considered the request for abatement on its merits, there is no ground for the issuance of a writ of mandamus.
The decision in Attleboro Trust Co. v. Commissioner of Corporations & Taxation, 257 Mass. 43, is readily distinguishable from the case at bar. That decision proceeded upon the finding (page 50) that the commissioner believed that “ the taxes assessed were in part at least illegal, and that his sole ground for denying the applications for abatement was that they were not filed within six months after the date of payment of the tax bills rendered as provided by G. L. c. 63, § 77.” This ground was held to be untenable in view of the express provision that such applications might be filed within two years. The effect of the decision was that the respondent ought to consider the applications on their merits and- not arbitrarily to refuse even to consider them unless filed within six months. That decision has no relevancy to the- facts here disclosed. The respondent in the case at bar did not decline to consider the application. He simply denied it. There is nothing in the record to indicate that the respondent did not honestly believe that the tax was legally assessed and warranted in every particular. Every presumption is to be indulged in favor of his good faith. Duffy v. Treasurer & Receiver General, 234 Mass. 42, 50. The circumstance that, to the knowledge of the respondent, a judge of the Superior Court upon a similar question had decided that the tax was illegal, does not entitle the petitioner to prevail. Notwithstanding that decision, it may still have appeared to the respondent, acting under a heavy sense of public duty, that the tax was legal.
The case at bar on its merits appears to be similar to
Order dismissing petition affirmed.