G. L. c. 59, § 35]

law he had not sworn to a true list of his property. If the statute is taken literally the assessors are bound by the list if the person bringing it in answers all questions put to him by the assessors, even although his answers disclose taxable property omitted from the list; but the courts have not permitted such an absurd result and it has been held that assessors are not bound by a sworn list if it appears by an examination of the person bringing it in that it is not true. Even if the assessors know a list to be false they must take it as true unless by inquiries, giving the person assessed a chance to answer and explain, additional property is disclosed. What is to happen if a person who has knowingly filed a false list upon additional inquiries sticks to his original falsehood, although his ownership of property not included in his list can be conclusively established by other evidence, has never been decided. It has been said on the one hand that the law can safely trust the question of amount of property owned to the oath of the individual, as it is something peculiarly within his knowledge and a false statement would be clearly punishable; on the other hand it has been intimated that the object of the statute is merely to give a man who has seasonably filed a list an opportunity to be heard before he is arbitrarily assessed for additional property. At any rate, refusal to answer the assessors' inquiries does not make a man an outlaw, and although his list is no longer binding he cannot be taxed on property he does not own and he may have an abatement if he is over-assessed. Thus one who has filed a list and then refuses to answer questions is in a better position than one who has filed no list at all.10

In calling upon a person who has brought in a list to answer inquiries the assessors need not follow the exact language of the statute. It is sufficient if they notify the taxpayer that they are not satisfied with the list and desire additional information.11

5 Hall v. Middlesex County Commissioners, 10 Allen 100 (1865).

6 Moors v. Street Commissioners of Boston, 134 Mass. 431 (1883); Chase v. Boston, 193 Mass. 522 (1907); National Fireproofing Co. v. Revere, 217 Mass. 63 (1914).

7 Newburyport v. Essex County Commissioners, 12 Met. 211 (1846). 8 Moors v. Street Commissioners of Boston, 134 Mass. 431 (1883).

9 Wright v. Lowell, 166 Mass. 298 (1896).

10 G. L. c. 59, § 61, infra page 287.

11 Cody v. Spear, 214 Mass. 241 (1913).

[G. L. c. 59, §§ 36, 37

Doom of the Assessors in Absence of List

SECTION 36. Assessors shall ascertain as nearly as possible the particulars of the personal estate, and of the real estate in possession or occupation, as owner or otherwise, of any person not bringing in such list, and shall estimate its just value, according to their best information and belief.

SECTION 37. Such estimate shall be entered in the valuation book, and, except as provided in section sixty-one, shall be conclusive upon any person not seasonably bringing in such list, unless he shows a reasonable excuse for the omission.

The meaning of section thirty-six is that, if a person liable to taxation does not furnish the assessors with a list, he shall be liable to be assessed for such property as in the judgment of the assessors he owns or possesses; not merely that the assessors' valuation shall be conclusive on the property he really owns. If the assessors are unable to ascertain the particular kinds or items of such taxable personal property as they think belongs to a person subject to taxation who has not brought in a list, it may be assessed in a lump sum as "personal property" or "personal estate" without any enumeration of particulars.2

3

Section thirty-seven has not been materially changed since its first enactment in 1785. There is nothing in this statute which prevents assessors from abating a tax although no list has been carried in; but later enactments which appear in other sections of the statutes now in force prohibited any abatement unless a list was at some time filed, and if the list was not filed within the time designated in the assessors' notice prohibited an abatement unless there was reasonable excuse for delay or the tax exceeded by more than fifty per cent the proper amount.* If however the assessors refuse to abate a tax assessed under the provisions of the preceding section and find that there was no reasonable excuse for delay in filing the list the person assessed

1 Harwood v. North Brookfield, 130 Mass. 561 (1881).

2 Tobey v. Wareham, 2 Allen 594 (1861); Noyes v. Hale, 137 Mass. 266 (1884); Lamson Consolidated Store Service Co. v. Boston, 170 Mass. 354 (1898). 3 Winnisimmet Co. v. Assessors of Chelsea, 6 Cush. 477 (1850); Sears v. Nahant, 205 Mass. 558 (1910).

4 G. L. c. 59, § 61, infra page 287.

G. L. c. 59, § 38]

is without remedy unless he can convince the county commissioners or the superior court that the finding of the assessors as to reasonable excuse was wrong."

The Annual Valuation of Taxable Property

SECTION 38. The assessors of each city and town shall at the time appointed therefor make a fair cash valuation of all the estate, real and personal, subject to taxation therein, and, in cities, the assessors may, in any year, divide the city into convenient assessment districts.

1

In the colonial statutes and in the annual tax acts of the provincial period provision was made for the valuation of domestic animals at fixed amounts regardless of their actual value, and it was not until 1777 that the assessors were directed to assess the inhabitants "according to the just value of their whole personal estate.” 2 In 1853 the requirement was added that the valuation be a "fair cash" valuation and in 1889 the assessors of cities were authorized to divide wards into assessment districts.

The fair cash value of property is ordinarily the equivalent of its fair market value; the fair cash value of property having a market is best ascertained by finding the price at which it will sell in the market. The statute refers to the price which some one will pay, and not the intrinsic value of the property or the price at which the court thinks people ought to have been willing to buy or sell the property. In valuing property commonly bought and sold, such as active bank stocks, or cotton or coal, all that is necessary is to ascertain the market price of such articles on the tax day, with perhaps a correction to offset the fleeting results of a temporary panic or boom as the result of

5 G. L. c. 59, § 64, infra page 293.

1 Anc. Chart. 70; St. 1776-7, c. 13, § 3. See also supra page 87.

2 St. 1777-8, c. 13, § 2.

3 Frequently in support of principles of valuation of general application decisions in tax cases and in eminent domain cases are cited indifferently; the fair cash value of the one is the equivalent of the fair market value of the other. Massachusetts General Hospital v. Belmont, 233 Mass. 190, 206 (1919). For the principles of valuation as applied in eminent domain proceedings see Nichols, Eminent Domain, 2d. ed., § § 217-223 inc. and §§ 444-459 inc.

4 National Bank of Commerce v. Bedford, 155 Mass. 313, 315 (1892); National Bank of Commerce v. New Bedford, 175 Mass. 257, 262 (1900); Massachusetts General Hospital v. Belmont, 233 Mass. 190, 206 (1919).

5 National Bank of Commerce v. New Bedford, 175 Mass. 257, 262 (1900).

[G. L. c. 59, § 38 a little latitude which the adjective "fair" injects into the requirements of the statute."

In the case of real estate, valuation for purposes of taxation is no such simple matter. The dominant intention of the statute is that property shall, for purposes of taxation, be assessed at its fair cash value considered with reference to all the uses to which it is adapted and to which it may be put by any owner." The fair cash value of a tract of land is ascertained by a consideration of all those elements which make it attractive for valuable use to one under no compulsion to purchase but yet willing to buy for a fair price. An actual sale is the best test of value but is not conclusive. No two pieces of real estate are exactly alike, so that the price at which one lot is sold is no sure test of the value of another, and the price at which even the lot under consideration has sold is not necessarily decisive as to its fair cash value, for either the buyer or the seller may have been under peculiar compulsion. With respect to land values, the assessors must however be guided chiefly by their knowledge of sales and must exercise their best judgment in comparing the availability of the piece of land which they are assessing with other similar parcels in the neighborhood with the prices paid for which they are familiar.

In assessing buildings, the assessors may be guided by the sale of similar buildings, but they may also be assisted by knowledge of the original cost, with allowance for depreciation, replacement cost, and the rents derived from the building, if leased for a use to which it is fairly adapted. All of these elements may be considered, but no one of them is decisive. The real test is the fair cash value, and other factors are important only as throwing light on that value.

In valuing large factories or the plants of public service corporations, which are not commonly bought and sold for

6 National Bank of Commerce v. New Bedford, 175 Mass. 257, 262 (1900). The market value of stock in a corporation owning only real estate and machinery and owing no debts is not conclusive of the value of the real estate and machinery. Chicopee v. Hampden County Commissioners, 16 Gray 38 (1860).

7 Tremont & Suffolk Mills v. Lowell, 163 Mass. 283, 288 (1895); Troy Cotton & Woolen Manufactory v. Fall River, 167 Mass. 517, 523 (1897); Blackstone Manufacturing Co. v. Blackstone, 200 Mass. 82, 89 (1908); Lodge v. Swampscott, 216 Mass. 260, 263 (1913).

8 Essex Co. v. Lawrence, 214 Mass. 79 (1913).

G. L. c. 59, § 38]

cash, the assessors must very largely be guided in reaching the fair cash value by knowledge of original cost and replacement cost, with allowance for depreciation, and productive power, but the real test is still the cash value, assuming a purchaser could be found."

More difficult questions arise in the case of structures which serve the purpose for which they are used, but would have little or no value for sale. The law contemplates the taxation of railroad stations and other property of public service companies, with respect to which there is no right of sale in the ordinary sense.10 So also there are classes of private property which have a market or cash value small or almost negligible as compared with their cost or their utility to their owners. A church, a private school, a clubhouse, or even a private dwelling of unusual design is often impossible to dispose of except at a great sacrifice when no longer needed by the parties who erected it. Such property cannot be taken for public use without compensation based on the usefulness of the property to the owner; but the court has held that in dealing with property of this class for purposes of taxation, the full amount which could have been secured for the property in the market by competition among probable buyers cannot be increased by considerations of value to the owner alone.11

In determining the value of the property, real and personal, used in a particular commercial enterprise, the assessors may take into consideration the use to which the property is put, as one of the uses to which it is adapted, and value the particular articles of property accordingly; but after this has been done and the entire taxable estate assessed by means of the assessment of the component parts, the assessors cannot also assess an additional sum on the enterprise as a whole, as a going concern or as a money-producing instrumentality.12

The valuation of tangible personal property which the taxpayer has acquired for his personal use, such as household furniture, is extremely difficult. Such property is seldom sold except under circumstances which negative a determination of

9 Essex Co. v. Lawrence, 214 Mass. 79 (1913); Massachusetts General Hospital v. Belmont, 233 Mass. 190, 207 (1919).

10 Supra pages 217, 246. Infra page 270.

11 Massachusetts General Hospital v. Belmont, 233 Mass. 190, 209 (1919). 12 National Fireproofing Co. v. Revere, 217 Mass. 63 (1914).