321 Mass. 46 | Mass. | 1947
These are three appeals by the commissioner of corporations and taxation from decisions of the Appellate Tax Board that the city of Malden is entitled to share in the proceeds of the corporate franchise tax paid in 1943 by the Malden Electric Company to the extent of $28,532.57, and to share in a similar tax paid by this company in 1944 to the extent of $29,894.76, and that the city is also entitled to share in the proceeds of the corporate franchise tax paid in 1943 by the Malden and Melrose Gas Light Company to the extent of $3,526.18.
The electric company was incorporated under the laws of this Commonwealth in 1888 for the purpose of “generating, selling and distributing electricity for light, heat and mechanical power, and carrying on a general electric light, heat and power business.” It conducts this business in Malden, Melrose, Medford and Everett. Its principal place of business is located in Malden.
The gas company is a domestic corporation which, since its organization in 1854, has engaged in the business of manufacturing, distributing and selling gas for illumination,
While the commissioner has contended that the notices sent to the treasurer and assessors of the city under the dates of November 22, 1943, and November 13, 1944, were valid notices that he had decided that the city was not entitled to any portion of the corporate franchise taxes paid in 1943 and 1944 by the gas and electric companies, yet he has also contended that, if these notices were insufficient, the three appeals to the board ought to have been dismissed because no appeal would lie until after the city treasurer had been notified by the commissioner of his decision.
We first decide whether the two appeals by the city with reference to the 1943 taxes were prematurely taken because they were filed with the board before a proper notice had been given to the city treasurer.
The commissioner on November 22, 1943, sent to the treasurer and assessors of Malden a form letter advising them that the city had been credited with certain amounts received from the collection of taxes in 1943, listing and describing three items, with the statutory references, and showing the specific amount due to the city on each of these items. The letter, however, made no mention whatever of the corporate franchise taxes that had been collected from the gas and electric companies. There was nothing in it indicating that the commissioner had made any decision as to the share of the city in these taxes, much less that he had decided that nothing was due to the city. This letter cannot be held to constitute a notice that the commissioner had ascertained that no part of the proceeds of these taxes should be paid to the city. Commissioner of Corporations & Taxation v. Springfield, decided this day.
The mayor of Malden under date of September 18, 1944, wrote to the commissioner, stating that he had learned from the city controller that the city had not received its proportionate share of the corporate franchise taxes for the years 1943 and 1944, and requesting that the commissioner
The mayor is the chief executive officer of the city, having general supervision over the various municipal departments and the conduct of its officers and employees. A notice to him concerning a matter in which the city has a pecuniary or proprietary interest, or a right to protect or enforce, is generally regarded, in the absence of a statute to the contrary, to be a sufficient notice to the city. Nichols v. Boston, 98 Mass. 39. Commercial Wharf Corp. v. Boston, 194 Mass. 460. Rollins v. Salem, 251 Mass. 468. Eastern Massachusetts Street Railway v. Mayor of Fall River, 308 Mass. 232. But a statute may prescribe, as does § 25, the city official to whom notice is to be given or with whom a notice is to be filed. The purpose of § 25 providing for notice to the city treasurer is to make certain that the municipal officer who is in immediate charge of its financial affairs, the receipt of its revenues and the disbursement of its funds, is apprised of the decision of the commissioner, in order that he may see that all sums to which the city is entitled are credited to it in settling its accounts with the
It follows that, no proper notice having been given to the city treasurer with reference to the proceeds of the taxes paid by the gas and electric companies in 1943, the
We now pass to the right of the city to share in the proceeds of the 1944 tax paid by the electric company. The commissioner gave a written notice to the city treasurer by a form letter under date of November 13, 1944. The sufficiency of this notice is not open. It appears from the written opinion of the board that “both parties treated [this letter] as a notice of determination by the commis sioner that there was nothing due the city on account of franchise taxes paid by the electric company for the jrear 1944.” So far as this is a finding of fact it is final, and so far as it involved any issue of law it is not open because it is apparent that the commissioner did not raise the questian before the board. “The court shall not consider any issue of law which does not appear to have been raised in the proceedings before the board.” G. L. (Ter. Ed.) c. 58A, § 13, as amended. Assessors of Boston v. Garland School of Home Making, 296 Mass. 378. Commissioner of Corporations & Taxation v. Boston Edison Co. 310 Mass. 674. Assessors of Boston v. Lamson, 316 Mass. 166. Assessors of Boston v. World Wide Broadcasting Foundation of Massachusetts, Inc. 317 Mass. 598, 602. Assessors of Boston v. Boston v. Revere Beach & Lynn Railroad, 319 Mass. 378.
The appeal to the board with reference to the 1944 tax was filed on December 14, 1944, a little more than a month after the notice of November 13, 1944. The commissioner contends that this appeal was not seasonably taken. Sectian 25 as it then stood provided for an appeal, but it did not fix the time within which an appeal should be taken. In such an instance an appeal must be effected within a reasonable time. Brown v. Grow, 249 Mass. 495, 499. American Fireworks Co. of Massachusetts v. Morrison, 300 Mass. 531, 533. What is a reasonable time is to be determined from the facts and circumstances of each particular case, including the time when a party first acquires knowledge of the facts upon which he bases his rights, the objects and purposes sought to be accomplished by a statute — if one is involved — requiring him to take certain action, and in
In 1944 the North Boston Lighting Properties, which was organized under a declaration of trust, held one hundred thirty-one thousand seven hundred twenty-four shares of the one hundred forty thousand nine hundred seventy-six outstanding shares of the electric company. The board found that the North Boston Lighting Properties was a trust, managed and controlled by nine trustees, all of whom were residents of the Commonwealth, that the legal title to these shares was vested in the trustees, and that these shares were to be considered as held by resident stockholders in computing the division of the 1944 tax between the Commonwealth and the city. We perceive no error in these findings. Williams v. Milton, 215 Mass. 1. Dunbar v. Broomfield, 247 Mass. 372. Greco v. Hubbard, 252 Mass. 37. Downey Co. v. Whistler, 284 Mass. 461. Commissioner of Corporations & Taxation v. Springfield, decided this day.
The. first two appeals filed with the board dealing with the proceeds of the 1943 corporate franchise taxes paid by the gas and electric companies must be dismissed, with costs, solely because they were filed prematurely. The amount
So ordered.
See now St. 1945, c. 687, allowing an appeal within thirty days after the receipt of. notice of the decision of the commissioner.