368 Mass. 149 | Mass. | 1975
The plaintiff taxpayer, trustee of a Massachusetts trust with transferable shares, appeals from a decision of the Appellate Tax Board. Neither party requested the board to make findings of fact and a report thereof. The defendant commission argues that the board’s decision must have turned on the factual question whether the receipts in dispute were “shown by the books” of the trust before 1971. G. L. c. 62, § 1 (f), as appearing in St. 1971, c. 555, § 5. This, says the commission, is the sole issue presented by the appeal. We hold that this issue does not appear to have been raised in the proceedings before the board and therefore cannot be considered by us. G. L. c. 58A, § 13. We reverse and order the disputed tax abated.
Under § 8 (c) any “earnings and profits accumulated prior to the effective date” of that section (which was to take effect for taxable years commencing after December 31, 1970, St. 1971, c. 555, § 67) and during a period when the trust “was not subject to taxation . . . solely by reason of the fact that it had elected not to file with the commissioner an agreement to pay a tax shall be considered tax-free earnings and profits.” Dividends paid from such tax-free earnings and profits are subject to taxation. The question whether accrued profit on a 1966 sale had been “accumulated” before 1971 even though not yet received in money was fairly presented to the board, and it would appear that it was decided against the taxpayer. The commission does not defend on that basis, however, in effect conceding that such a decision by the board would be erroneous. Cf. First Sav. & Loan Assn. 40 T. C. 474, 487 (1963). Contrast Johnson v. Commissioner Int. Rev. 56 F. 2d 58, 59 (5th Cir. 1932), cert. den. 286 U. S. 551 (1932) (cash receipts and disbursements basis); N. J. Ennis, 17 T. C. 465, 470
The commission relies entirely on § 1 (f), defining “dividend,” as “used in this chapter,” as a “distribution . . . made . . . out of . . . earnings and profits,” and adding: “Earnings and profits, as used herein, mean the earnings and profits shown by the books of the corporation or other entity making the distribution.” The commission apparently assumes that this language was intended to be applied to § 8 (c) so as to make a retroactive bookkeeping rule for transactions recorded before the statute was enacted in 1971.
We need not pass on this point, however, in view of G. L. c. 58A, § 13, as amended through St. 1973, c. 1114, § 5, which provides: “The court shall not consider any issue of law which does not appear to have been raised in the proceedings before the board.” There is in the record before us no hint that any issue as to what was “shown by the books” of the trust was so raised.
The decision of the board is reversed. The plaintiff’s application for abatement is to be granted.
So ordered.