318 Mass. 293 | Mass. | 1945
The commissioner of corporations and taxation appeals from a decision of the Appellate Tax Board abating a meal tax, so called, which he had determined was due under G. L. (Ter. Ed.) c. 64B. inserted by St. 1941, c. 729, § 17.
The appellee, the club, owns a three-story building, the second and third floors of which are occupied by it. The club was incorporated under the laws of this Commonwealth more than fifty years ago for the purpose of “establishing and maintaining a place for social meetings.” The top floor is used as a dining room for members and their guests. The membership is limited to two hundred, and on an average two or three meals a week are served to guests. The club is open each week day from noon to three o’clock for the purpose of serving meals. Each member pays dues and is charged each month for meals, whether he is accommodated or not, unless he makes other arrange
The appeal to the board purported to be taken under c. 64B, § 7. This statute provides, “If a taxpayer, having failed to file a return or, having filed an incorrect or insufficient return, without reasonable excuse fails to file an original or corrected return, as the case may require, within twenty days after the giving of notice to him by the commissioner of his delinquency, the commissioner, at any time within three years from the date when the return should have been filed, shall determine the amount due. The taxpayer, within ten days after the expiration of said period of twenty days may appeal from the decision of the commissioner to the appellate tax board, whose, decision shall be final. The commissioner or, in the case of appeal, the appellate tax board, having made such determination, shall give notice to the delinquent taxpayer of the amount determined to be due, and the taxpayer shall forthwith after the giving of such notice pay to the commissioner the amount so determined with interest at six per cent from the time when the original correct return should have been filed.” This statute might well have been cast in more, direct and certain terms. The ascertainment of the legislative intent is not entirely free from difficulty. We are not unmindful of the report made to the current session of the Legislature by the Appellate Tax Board directing attention to the need of clarification of this section; nor of the bills now pending for the' accomplishment of this purpose; nor of the administrative practice adopted by the board in holding that no appeal lies except from a determination of the tax.
There is no necessity for any appeal from the determination of the tax if the appeal from the notice is seasonably taken. Section 7 does not provide for any separate or independent appeal from the determination of the tax by
The board had no jurisdiction to entertain the appeal
The administrative practice adopted by the board is too recent to afford any persuasive evidence of the construction of § 7, and furthermore it cannot be followed because it is inconsistent with the provisions of that section. Allen v. Commissioner of Corporations & Taxation, 272 Mass. 502, 509. Modern Finance Co. v. Holz, 307 Mass. 281, 287. Alexander v. Cosden Pipe Line Co. 290 U. S. 484, 498.
In passing, it may be mentioned that the commissioner, having failed to give any notice of delinquency for the month of June, 1943, had no power to determine the tax for that month on any basis different from the return filed by the club. Whether, if the question were open on the merits, the chib was liable for the tax for July, 1943 (which was the only month mentioned in the notice of delinquency for which a tax was determined by the commissioner), Commissioner of Corporations & Taxation v. Chilton Club, ante, 285, cannot be decided on this record because the appeal to the board was too late.
Petition for abatement dismissed.