23 Mass. App. Ct. 618 | Mass. App. Ct. | 1987
On April 8, 1976, the plaintiff commenced two eminent domain actions (later consolidated) against the defendant, the town of Stoughton. On December 12, 1985, the parties entered into an agreement for judgment which called for the payment to the plaintiff of $650,000 on account of the land takings. Execution issued on December 19, 1985. The treasurer-collector for the town made an examination of the collector’s records about February 11, 1986, which revealed that the plaintiff owed real estate taxes on properties not subjects of the taking in the amount of $18,984.93. Relying on G. L. c. 60, § 93, as amended by St. 1945, c. 397, § 2, the pertinent
The parties are in agreement that (1) the remedies afforded municipalities for the collection of taxes are cumulative, see Boston Five Cents Sav. Bank v. Boston, 318 Mass. 183, 188 (1945), and (2) G. L. c. 60, § 93, provides a statutory set-off procedure. Id. at 185-186. The plaintiff does not contest, nor could he, the assessment or the amount of the taxes in question. See Sears v. Nahant, 221 Mass. 435 (1915); Boston v. Second Realty Corp., 9 Mass. App. Ct. 282 (1980), and cases cited. Rather, the plaintiff argues, the town is barred from setting off the amount of these real estate taxes because it would have been foreclosed from bringing an action of contract against the plaintiff to recover them. See G. L. c. 60, § 35, and G. L. c. 260, § 2.
One of the ways by which a municipality may recover delinquent real estate taxes is by an action in contract. G. L. c. 60, §35, as appearing in St. 1946, c. 251, § l.
The orders allowing the motions for issuance of successive or alias executions are vacated.
So ordered.
“The treasurer or other disbursing officer of any town may, and if so requested by the collector shall, withhold payment of any money payable to any person from whom there are then due taxes, assessments, rates or other charges committed to such collector, which are wholly or partly unpaid, whether or not secured by a tax title held by the town, to an amount not exceeding the total of the unpaid taxes, assessments, rates and other charges, with interest and costs. The sum withheld shall be paid or credited to-the collector, who shall, if required, give a written receipt therefor.”
The plaintiff also argues on appeal that the set-off procedure violated his rights to due process in that he was denied the opportunity to raise the question of the applicability of the statute of limitations before the taxes were withheld. This issue was not adequately raised in the Superior Court, and we do not consider it. See Trustees of Stigmatine Fathers, Inc. v. Secretary of Admn. & Fin., 369 Mass. 562, 565 (1976); Caswell v. Licensing Commn. for Brockton, 387 Mass. 864, 866 n.2 (1983). But, as to the merits of the issue, cf. Old Colony R.R. v. Assessors of Boston, 309 Mass. 439 (1941).
General Laws c. 60, § 35, provides: “If a tax which has been committed to a collector remains unpaid after it has become due and payable, it may be
In the Superior Court and in this court the plaintiff conceded that the amount of delinquent taxes withheld from the eminent domain payment represented taxes for the fiscal years (July 1 through June 30, see G. L. c. 44, § 56, & c. 59, § 57) 1976-1977 “to the present” (i.e., 1986). Thus, it is clear that, even if the plaintiff’s statute of limitations argument were valid, an action in contract for the recovery of some of the unpaid taxes would not have been barred when the set-off under G. L. c. 60, § 93, was made.
We note that, on the plaintiff’s concession, none of the town’s claims for unpaid taxes had matured when the eminent domain actions were commenced on April 8, 1976. A set-off existing at the time an action is filed may be pleaded by permissive counterclaim and a set-off which later matures may likewise be pleaded with the approval of the court. Mass.R.Civ.P. 13(b) & (e), 365 Mass. 758, 759 (1974). In either case, the statute of limitations as to the set-off is computed “as if an action had been commenced therefor at the time the plaintiff’s action [here the eminent domain actions] was commenced.” G. L. c. 260, § 36, inserted by St. 1973, c. 1114, § 341. See generally Bose Corp. v. Consumers Union of United States, Inc., 367 Mass. 424, 427-431 (1975).