G. L. c. 59, § 25] consider these amounts in assessing the tax for the ensuing year, and they may be and commonly are left in the treasury to constitute a reserve fund" or "excess and deficiency account" available for appropriation for unforeseen expenditures arising after the tax rate has been fixed and before the beginning of the next fiscal year. The town may however, if it sees fit, appropriate money from the reserve fund for the current expenditures of the town prior to the fixing of the tax rate, and thus reduce the assessment for the current year. 5 The distinction between the tax rate and the tax limit is explained elsewhere in this work. The tax rate is fixed by deducting from the amount to be raised (including overlay) the estimated receipts from income taxes, corporation taxes and other sources and the sum to be raised from poll taxes, and dividing the balance by the aggregate valuation of real estate and tangible personal property taxable within the town. There are two provisions of section twenty-three that are not to be taken literally. The statute says that the assessors may deduct the estimated receipts "except from loans or taxes. By "taxes" only the taxes collected directly by the town are meant; taxes which are paid to the state and distributed to the towns, such as income taxes and corporation taxes, may of course be deducted in computing the amount to be assessed. In respect to the receipts from the income tax, the assessors are governed by the estimate of the commissioner of corporations and taxation rather than by the actual receipts of the preceding year." Overlay SECTION 25. The assessors in any city or town, except Boston, may add to the amount to be assessed not more than five per cent thereof, although the limit of taxation as fixed in any city may by such overlay be exceeded, such amount to be used only for avoiding fractional divisions of the amount to be assessed in the apportionment thereof and for abatements granted on account of polls or property assessed in the year in which the overlay is made or of taxes in the warrant of which the overlay is a part; but any balance in the overlay account, in excess of the amount of the warrant remaining to be collected or abated, shall be transferred to a reserve fund to be used for extraordinary or unforeseen expenses. 5 G. L. c. 44, § 29, supra page 159. 6 G. L. c. 58, § 19, supra page 172. [G. L. c. 59, § 26 Prior to 1785 it had been the common practice of assessors, either to suit their convenience in calculating the apportionment of the tax, or with a view to meeting abatements or defalcations and mistakes, to add to the amount of the tax required by the votes of the town a sum sufficient in their judgment to answer these purposes.1 This was however done without any statutory authority; and in order to remove doubts as to the power of assessors to do this, and at the same time to limit their discretion, it was provided in the statute of 1785 relating to the duties of assessors that the assessors might make an overlay not exceeding five per cent of the amount of the tax and in no case exceeding forty pounds. The latter limitation was removed in 1828. After 1785 the assessors could not lawfully make an overlay exceeding five per cent; but the overlay might equal five per cent of the whole tax they were authorized to assess and not merely of the town tax. Prior to 1859 an excessive overlay rendered the whole tax void; but under the statutes in force since then a tax illegal in part is illegal only to the amount of the part that is illegal, and accordingly an excessive overlay does not render the whole tax void." Prior to 1913 there was no provision in the statutes respecting the use to be made of the funds raised by the overlay; in that year provision was made for the use of the overlay for abatements granted on account of polls assessed, and in 1918 the statute was placed in its present form,' the limitation to polls being considered to have been unintentionally made.3 Inclusion of State, County and Town Taxes in one SECTION 26. The assessors may include state, county, city and town taxes, or any two of them, in the same assessment. 1 Alvord v. Collin, 20 Pick. 418 (1838); Cone v. Forrest, 126 Mass. 97 (1879). 2 Libby v. Burnham, 15 Mass. 144 (1818); Alvord v. Collin, 20 Pick. 418 (1838); Cone v. Forrest, 126 Mass. 97 (1879). 3 Alvord v. Collin, 20 Pick. 418 (1838). 4 Alvord v. Collin, 20 Pick. 418 (1838). 5 St. 1859, c. 118, now G. L. c. 59, § 82, infra page 311; Cone v. Forrest, 126 Mass. 97 (1879). 6 St. 1913, c. 649; St. 1913, c. 823. 7 St. 1918, c. 257, § 37. This statute also contains a provision applicable to the City of Boston. 8 See Preliminary Report of Commissioners to Consolidate the General Laws, p. 105. G. L. c. 59, §§ 27,28] During the colonial and provincial periods there appear to have been separate assessments in each town of the colony or province tax, the county tax and the town tax; but in 1785 it was provided that whereas the county tax might often be so small that it would be inconvenient to make a separate list of each person's proportion of it, in such case the assessors of any town, district or plantation might lawfully add their proportion of the county tax to any of their other taxes. The state tax could not under that statute be united with the town and county tax;1 but under the Revised Statutes of 1836 provision was made authorizing the inclusion of the state tax with the county and town taxes in one assessment. It is now the universal practice to include these taxes in one assessment; and the tax rate of each town, as commonly quoted, includes state and county taxes. Remedy if Assessors Fail to Act SECTION 27. If assessors neglect to assess a state, county, city, town or district tax required by law, the county commissioners shall forthwith appoint other persons in accordance with section twentyseven of chapter forty-one. SECTION 28. If a state or county tax is not assessed, and paid by the town, within the time prescribed, and remains unpaid at the expiration of five months after the receipt of a warrant from the state treasurer or of a certificate from the county commissioners requiring its assessment, the amount of the tax may be recovered of the town in contract by the state treasurer or the treasurer of the county respectively. Assessors who neglect to assess the taxes required by law are liable to a fine as well as to removal.1 Under the present statutes the share of each town in the state and county taxes is dependent to a considerable extent upon the determination of the commissioner of corporations and taxation of its valuation, although the state tax is of course actually assessed by the legislature. A town may question the correctness of the commissioner's valuation either in an action. 1 Alvord v. Collin. 20 Pick. 418, 424 (1838). [G. L. c. 59, § 29 brought under section twenty-eight by the state or a county to recover the town's share in the state tax or in an information brought by the state treasurer under the provisions of the annual act imposing the state tax, and may in such proceedings contest the constitutionality of any other burden imposed upon the town as a part of the state tax.3 The Notice to Taxpayers to Bring in Lists SECTION 29. Assessors before making an assessment shall give seasonable notice thereof to all persons subject to taxation in their respective towns. Such notice shall be posted in one or more public places in each town, or shall be given in some other sufficient manner, and shall require the said persons to bring in to the assessors, before a date therein specified, in case of residents a true list, containing the items required by the commissioner in the form prescribed by him under section five of chapter fifty-eight of all their polls and personal estate not exempt from taxation, except intangible property the income of which is included in a return filed the same year in accordance with sections twenty-two to twenty-five, inclusive, of chapter sixty-two, and in case of non-residents and foreign corporations such a true list of all their personal estate in that town not exempt from taxation, and may or may not require such list to include their real estate subject to taxation in that town. It shall also require all persons, except corporations making returns to the commissioner of insurance as required by section thirty-eight of chapter one hundred and seventy-six, to bring in to the assessors before a date therein specified, which shall not be later than June first following, unless the assessors for cause shown extend the time to July first, true lists, similarly itemized, of all real and personal estate held by them respectively for literary, temperance, benevolent, charitable or scientific purposes on April first preceding, or at the election of any such corporation on the last day of its fiscal year last preceding said April first, and to state the amount of receipts and expenditures for said purposes during the year last preceding said days. The notice shall contain the provisions of section thirtyfour. The requirement of furnishing a list of taxable property was first imposed upon taxpayers in Massachusetts by the annual 3 Chelsea v. Treasurer & Receiver General, 237 Mass. 422 (1921). G. L. c. 59, § 29] 6 tax act of 1715;1 and it was continued in the annual and special tax acts without material change until 1735. The obligation was upon the inhabitants of the town to bring in "true and perfect lists of their polls and ratable estates." In 1735 the failure to file a list was for the first time made a cause for refusing an abatement.2 The development of this phase of the law relating to lists is discussed at length elsewhere in this work.3 The permanent statute of 1785* contained the customary provision for notices and lists and remained in force through the subsequent revisions without material change until 1877 when it was made optional with the assessors to require the lists of property to include real estate. In 1882 the provision of statute relating to the taxation of mortgaged land was adopted and the requirement that the provisions of this statute be included in the notice, now appearing at the end of the section under consideration, was imposed. In 1881 and 1888 the provisions for the return of lists of property held for literary, charitable and similar purposes were enacted. In 1898 it was held that the inhabitants of the city or town by which the tax was assessed were the only persons who had to file lists on or before the designated date, because they were the only persons whom the assessors were required to notify to bring in lists, but in 1903 the statute was put in substantially its present form, requiring all persons, firms and corporations subject to taxation to file lists. The only changes since then have been to set back one month all the points of time fixed in the statute 10 and the amend 1 St. 1715-16, c. 11, § § 4, 5. 2 St. 1735-6, c. 13, § 5. 3 G. L. c. 59, § 61, infra page 287. 4 St. 1785, c. 50, § 9. 5 St. 1877, c. 160. 6 St. 1882, c. 175, § 1, now G. L. c. 59, § 34, infra page 263. 7 St. 1888, c. 323. 8 Hopkins v. Reading, 170 Mass. 568 (1898). It was held in Otis Co. v. Ware, 8 Gray 509 (1857), that the statute although it applied in terms to "inhabitants" included a corporation holding taxable real estate in the town. In Greenfield v. Franklin County Commissioners, 135 Mass. 566 (1883), it was held that the statute had no application to a corporation established under a special statute which provided that its funds for the purposes of taxation should be divided among eight designated towns and that the assessors of each should be notified of the apportionment; for the notice of the apportionment required by the charter was a substitute for the list required by the general statute. 9 St. 1903, c. 157. 10 St. 1909, c. 440; St. 1914, c. 198, § 5. |