317 Mass. 505 | Mass. | 1945
This is an appeal from an order of the Appellate Tax Board dismissing a petition filed with said board seeking an abatement of a tax assessed for the year 1943 on real estate, in Boston, owned by the appellant. The petition alleges that the assessors had refused to abate the tax and is based upon the single ground that the property was assessed for more than its fair cash value. The petition, alleges that the tax has not been paid and no contention is made that any part of it has been paid. The Appellate Tax' Board dismissed the petition, having found that the tax was not paid as required by G. L. (Ter. Ed.) c. 59, §§ 64, 65, as amended by, and § 65B as inserted by, St. 1938, c. 478> and §§64 and 65 as subsequently amended by St. 1939, c. 31, §§ 6, 7, and St. 1939, c. 366, § 2. See St. 1943, c. 248.
The question presented is whether these three sections
The appellant contends that the requirement of payment before it can secure a hearing for the abatement of the tax is violative of its constitutional rights. It is doubtful if this point is open to the appellant. The principle has been frequently applied that one having recourse to a statutory remedy must accept the remedy as a whole with its bur
The appellant was not required to pay the entire tax before it could file a petition with the board, and it was protected against increase in the tax due to raising the valuation in the tax year, for it need pay only one half of the amount of the tax or one half of the amount calculated upon the average assessment for the three preceding years. The appellant did not pay this one half or file with the board a request for leave to file a petition for abatement because •it then was unable to pay the balance of the tax. The failure of the appellant to adopt this course is not without its implications. Such failure does not suggest that the appellant was unable to pay the balance of the tax or that it needed an extension of time in which to do so. Taxes are not payable at the convenience of the taxpayer. Where, as here, only property rights are involved, a taxpayer has no right to withhold payment of a tax assessed by the proper board until the amount of the tax has been judicially determined where adequate means for such determination are afforded to him. Phillips v. Commissioner of Internal Revenue, 283 U. S. 589, 596-597. Bowles v. Willingham, 321 U. S. 503, 520. The payment of a tax as a condition precedent to obtaining relief in abatement
We do not know whether, on account of stress of official business or for some other reason, the assessors did not give the appellant a hearing upon its application for an abatement. There is nothing in our statutes that indicates that the assessors should not hear such applications, Eastern Racing Association, Inc. v. Assessors of Revere, 300 Mass. 578, 582; Assessors of Brookline v. Prudential Ins. Co. 310 Mass. 300, 309, but the statute, G. L. (Ter. Ed.) c. 59, § 64, as amended at the time the tax in question was assessed, provided that the failure of the assessors to act upon an application within four months subsequent to its filing, except where the taxpayer otherwise consented in writing, should be deemed to be a refusal to abate and that an appeal might be had to the Appellate Tax Board. It is true that a hearing upon the application of the person assessed before the assessors is not conditioned upon the payment of the tax. G. L. (Ter. Ed.) c. 59, § 59, as most recently amended by St. 1943, c. 166, § 1. Boston Five Cents Savings Bank v. Assessors of Boston, 313 Mass. 762, 766. This is but an act of grace accorded to the taxpayer by the Legislature. Phillips v. Commissioner of Internal Revenue, 283 U. S. 589, 599. The taxpayer has no just complaint because it did not get a hearing before the assessors when provision is made, whether or not such hearing was accorded to it by the assessors, for a full hearing before the Appellate Tax Board. "There is no constitutional requirement that that test be made in one tribunal rather than in another, so long as" there is an opportunity to be heard and for judicial review which
The contention of the appellant, that a statute that requires it to pay a tax before it can obtain a hearing upon the merits is invalid, cannot be sustained. Every contention that the appellant has raised has already beén considered by this court in Old Colony Railroad v. Assessors of Boston, 309 Mass. 439, and decided against the tax-' payer. It is unnecessary to repeat what was there said and decided. That decision is decisive in the present case.
Petition for abatement dismissed with costs.