SECOND CHURCH IN DORCHESTER
vs.
CITY OF BOSTON.
Supreme Judicial Court of Massachusetts, Suffolk.
Present: WILKINS, C.J., SPALDING, WILLIAMS, WHITTEMORE, & SPIEGEL, JJ.
William H. Kerr, for the defendant.
Richard B. Dellheim, for the plaintiff.
SPALDING, J.
On January first of each of the years 1954, 1955, 1956, and 1957, the plaintiff, a Massachusetts religious corporation, was the owner of real estate at 6 Melville Avenue in the Dorchester district of the city of Boston. The real estate during these years was used as a parsonage for its house of worship. In each of these years the defendant's assessors included the parsonage in their annual valuation list at a valuation of $7,700 and assessed to the plaintiff taxes respectively of $188.46, $188.46, $212.49, and $232.20 which were the proper taxes payable on a taxable valuation of $2,700. The plaintiff paid each bill within the year it was assessed. None of these payments was made "after... a levy on its goods, a notice of a sale or taking of its real estate, a written protest signed by it, or a withholding of money due it." Prior to 1953 the plaintiff was entitled to an exemption of $5,000 for its parsonage under G.L.c. 59, § 5, Eleventh, as amended by St. 1938, c. 317. *478 In 1953, the exemption was increased to $10,000, St. 1953, c. 231. Prior to the present proceeding, which was commenced on June 14, 1960, no action to recover any of the aforementioned sums was instituted by the plaintiff.
The present proceeding is for declaratory relief under G.L.c. 231A, inserted by St. 1945, c. 582, § 1, and was submitted on the foregoing statement of agreed facts. The judge ordered a decree to be entered declaring (1) that the taxes assessed against the plaintiff were illegal and void and (2) that the plaintiff was entitled to recover back the amounts paid. From a decree in accordance with this order, the defendant appealed.
The defendant concedes that the plaintiff was entitled to an exemption of $10,000 for each of the four years involved, and that the assessments were illegal. The defendant contends, however, that no relief can be given under c. 231A in view of the specific statutory remedies. We agree. The Legislature has set up two methods for recovery of taxes paid. The first is a proceeding in abatement under G.L.c. 59, §§ 59-74. Norwood v. Norwood Civic Assn.
The plaintiff's contention that § 98 is not applicable because the assessment was totally void, and therefore not a "tax," is without merit. The very purpose of § 98 is to allow recovery of void taxes. "An action of contract ... to recover a tax under G.L.c. 60, § 98, cannot be maintained unless the tax is wholly void. That has been frequently determined." Central Natl. Bank v. Lynn,
*479 In certain exceptional instances this court has upheld the granting of declaratory relief in the discretion of the court in certain tax controversies where to do so would constitute "a convenient means of promoting justice and will not unduly interfere with the collection of taxes." Meenes v. Goldberg,
Despite the unfortunate loss to the plaintiff because of having paid, without protest and suit, taxes in the years 1954 to 1957, this is not a case where resort may be had to declaratory relief under c. 231A. The only apparent purpose of seeking such relief is to circumvent the bar of the three months' limitation on actions contained in G.L.c. 60, § 98,[1] and the provisions applicable to abatements. The plaintiff is not faced with uncertainty about liability for a tax which remains unpaid or about which it and others similarly situated may have to engage in burdensome and duplicating litigation; nor is it faced with a tax as to which it at no time had a convenient and effective statutory remedy. In short, no special circumstances have been shown for invoking declaratory relief in a tax case. Chapter 231A was not intended to enlarge substantive, as opposed to procedural, rights in a case of this sort. See Executive Air Serv. Inc. v. Division of Fisheries & Game,
*480 The plaintiff cannot recover back the tax in these proceedings. That portion of the decree which declared that the tax was void need not be affirmed for it would not terminate the controversy. G.L.c. 231A, § 3. The final decree, therefore, is reversed and a new decree is to be entered dismissing the bill.
So ordered.
NOTES
Notes
[1] It has been held elsewhere that declaratory procedure cannot be employed to circumvent statutes of limitations. See Maguire v. Hibernia Sav. & Loan Soc.