30 Mass. App. Ct. 264 | Mass. App. Ct. | 1991
One of the verities of tax practice in Massachusetts is that an application for abatement of taxes, to be timely filed, must be placed in the hands of the assessors or the Commissioner of Revenue, as the case may be, before expiration of the deadline date. Mailing it on the deadline date is not good enough if the application for abatement arrives after the due date. We are invited to reexamine that rule in the context of State as compared to local taxation, and in the light of comparatively recent directives concerning the filing of State tax returns.
Tilcon’s tax papers were prepared and filed from the office of its corporate parent in New Britain, Connecticut. The application for abatement was dispatched by certified mail to the Commissioner on March 14, 1988, and received by the Commissioner March 18, 1988, three days late. For the reason that it had been untimely made, the Commissioner denied the application for abatement. Tilcon appealed to the ATB, which affirmed the action of the Commissioner and dismissed the appeal. From that decision, Tilcon now further appeals. In its brief, Tilcon aptly states that the only issue is whether a “postmark rule,” which takes the date of the postmark as the date of filing, shall govern applications for abatement under G. L. c. 62C, § 37.
As remarked at the beginning of this opinion, the rule is long entrenched that applying for an abatement connotes placing the application in the hands of the authority which is to consider it. See Old Colony R.R. v. Assessors of Quincy, 305 Mass. 509, 513-514 (1940); Assessors of Brookline v.
The rationale advanced for this exacting attitude is that the remedy of abatement is a statutory one, for which the statute has devised precise procedures. If any of the procedures so prescribed is not complied with, the taxpayer loses the remedy. Old Colony R.R. v. Assessors of Quincy, 305 Mass, at 511-513. Singer Sewing Mach. Co. v. Assessors of Boston, 341 Mass. 513, 516 (1960). New Bedford Gas & Edison Light Co. v. Assessors of Dartmouth, 368 Mass. at 748. Also implicit in the cases is the idea that delivery in hand prior to the statutory deadline is necessary to give the taxing authority notice of impending liability. See Assessors of Brookline v. Prudential Ins. Co., 310 Mass. at 312; MacDonald v. Assessors of Mashpee, 381 Mass. 724, 726 (1980); SCA Disposal Servs., Inc. v. State Tax Commn., 375 Mass. at 341. Perhaps the force of those reasons for a
To break the rule’s grip so far as corporate excise taxes are concerned, Tilcon advances two arguments: first, the strict compliance rule was formulated in relation to local, i.e., municipal, property taxes and should be confined to them; second, other statutory material, as well as a regulation and a directive from the Department of Revenue, have authorized “postmark filing,” producing a confusing procedural map whose uncertainties ought to be resolved in favor of the taxpayer.
The first argument, that the delivery-in-hand requirement for effecting an application for a tax abatement does not pertain to corporate excise taxes, begins to come apart when one compares the statutory language of G. L. c. 59, § 59, which authorizes applications for local real estate tax abatements, with G. L. c. 62C, § 37, which authorizes applications for corporate excise tax abatements. The first sentence of the former, G. L. c. 59, § 59, as appearing in St. 1963, c. 125, provides that, “A person upon whom a tax has been assessed ... if aggrieved by such tax, may . . . apply in writing to the assessors, on a form approved by the commissioner, for an abatement thereof. . . .” That is the language upon which the Old Colony R.R. case, supra, and its progeny are based. The latter, G. L. c. 62C, § 37, provides that: “Any person aggrieved by the assessment of a tax . . . may apply in writing to the commissioner, on a form approved by him, for an abatement thereof. . . .” The operative words of the two statutes are virtually identical. If essentially the same statutory language should lead to the same result, see Webster v. Board of Appeals of Reading, 349 Mass. 17, 19 (1965), nothing appears in the State tax abatement provision which gives Tilcon any hope. In this instance, there is especial significance to the virtually identical language because G. L. c. 62C, § 37, regarding State taxes, was inserted by St. 1976, c. 415, § 22, as part of a comprehensive revision and recodification of administrative provisions relating to
Decisional law deals the taxpayer no better hand because there are cases in which the “timely when received” criterion has been applied in a State excise tax context. Shea v. Commissioner of Rev., 390 Mass. at 1001, dealt with an application for abatement and rejected mailing before the deadline as sufficient. For cases that reject mailing as sufficient performance of a notice requirement in other contexts, see Assessors of Sandwich v. Commissioner of Rev., 382 Mass. 689 (1981); Assessors of Marlborough v. Commissioner of Rev., 383 Mass. 876 (1981); SCA Disposal Servs., Inc. v. State Tax Commn., 375 Mass. at 340-342. As to a case in which no distinction was drawn between the procedural requirements of local property taxes and State taxes, see Aetna Life Ins. Co. v. Commissioner of Corp. & Taxn., 323 Mass. 657, 660 (1949).
We come then to Tilcon’s argument that the “postmark rule” so pervades State tax procedure that taxpayers ought to be able to rely on it. At the core of the contention is the idea that a statutory scheme ought not to set traps for the unwary. See Becton, Dickinson & Co. v. State Tax Commn., 374 Mass. 230, 233 (1978). In support of its argument, Til-con points first to G. L. c. 62C, § 33A, inserted by St. 1976, c. 415, § 22, which provides that, if a “payment of tax to the commissioner is required to be made on or before a prescribed date,” delivery to the United States mail on or before the prescribed date will satisfy the requirement, although the statute specifies categories of tax payments as to which posting must be accomplished “on or before the second day before such prescribed date.” Tilcon also calls to attention the Commissioner’s “Technical Information Release
The fault in Tilcon’s line of reasoning is that if filing were universally understood 'as accomplished by placing a document in the mail, there would be no need for statutes such as G. L. c. 62C, § 3 3A, and Technical Information Releases such as No. 84-3, which prescribe in what cases, and how, mailing complies with a filing deadline. Working against Til-con is the canon of statutory construction that, if specific language appears in one section of a statute and is absent from a related section, the absent language should not be read into the provision from which it is missing. Beeler v. Downey, 387 Mass. 609, 616 (1982). First Natl. Bank v. Judge Baker Guidance Center, 13 Mass. App. Ct. 144, 153 (1982). Indeed, as a general proposition, the cases have not equated mailing to filing. Schulte v. Director of the Div. of Employment Security, 369 Mass. at 78. Garrett v. Director of the Div. of Employment Security, 394 Mass. 417, 420 (1985). If mailing is to be the controlling date, explicit expression of that legislative intent should appear in the statute. Assessors of Salem v. State Tax Commn., 371 Mass. 410, 412 (1976).
Similar differentiation about when filing requires direct placement with a clerk, and when it may be satisfied by posting in the mail, appears in the Massachusetts Rules of Civil Procedure. For example, Mass.R.Civ.P. 5(e), 365 Mass. 746
Our acknowledgment that there are variations in what satisfies filing requirements among various categories of State tax administration does not constitute an endorsement of those variations. Taxpayers should be able to ask for refunds, the lay person’s word for abatements, without having to command procedural arcana, and a uniform filing standard would help.
As this case and State St. Boston Corp. v. Commissioner of Rev., post 920 (1991), illustrate, the delivery-in-hand requirement which pertains to applications for abatement will occasionally derail a taxpayer who assumes too much. That taxpayers are sometimes uncertain as to what constitutes timely filing of documents with the appropriate State tax office was recently acknowledged by no less than the Commis
Decision of the Appellate Tax Board affirmed.
The earlier mailing date is for taxes on cigarettes, gasoline, imported fuels, special fuels, room occupancy, sales, use, and alcoholic beverages.
In accordance with G. L. c. 30, § 33, the head of a State department may include legislative recommendations in connection with that officer’s annual report.