[G. L. c. 59, § 61 There were a number of decisions prior to 1894 in which more or less informal statements were sustained as sufficient lists.15 In 1894 the statute now found in section five of chapter fifty-eight was enacted requiring the tax commissioner to prescribe forms for lists 16 and in 1909 it was made clear that the use of the tax commissioner's forms was a condition precedent to an abatement." If a person files a list in good faith, but omits certain items of property accidentally or in the belief that it is not taxable, he is not precluded from an abatement;18 but a list is not a "true list" within the meaning of section twenty-nine if a large amount of property is wilfully omitted on the ground that it is not taxable when it is well established that it is taxable." If a taxpayer includes in his list certain items that are not taxable he is not estopped from asking that the tax on such items be abated;20 and he is not precluded by filing a list in a certain town from contending that he is not taxable in such town at all.21 The courts have never attempted a comprehensive definition of what would constitute reasonable excuse for delay in bringing in a list.22 The assessors cannot waive the statutory require 15 Charlestown v. Middlesex County Commissioners, 1 Allen 199 (1861); Great Barrington v. Berkshire County Commissioners, 112 Mass. 218 (1873); Lanesborough v. Berkshire County Commissioners, 131 Mass. 424 (1881). Mere reference to an old list was not however sufficient. Winnisimmet Co. v. Assessors of Chelsea, 6 Cush. 477 (1850). 16 Supra page 165. 17 G. L. c. 59, § 29, supra page 258. The requirement that a person seeking an abatement of the tax on his real estate should file a list of his real estate, with an estimate of the value of each parcel, was expressly repealed by St. 1918, c. 50, § 2, and has never been re-enacted, but in some mysterious manner it has reappeared in the General Laws. 18 Great Barrington v. Berkshire County Commissioners, 112 Mass. 218 (1873); Wright v. Lowell, 166 Mass. 298 (1896); Blackstone Manufacturing Co. v. Blackstone, 200 Mass. 82 (1908). 19 Sears v. Nahant, 215 Mass. 329 (1913). 20 Dunnell Manufacturing Co. v. Pawtucket, 7 Gray 277 (1856); Hardy v. Yarmouth, 6 Allen 277 (1863); Charlestown v. Middlesex County Commissioners, 109 Mass. 270 (1872); Milford Water Co. v. Hopkinton, 192 Mass. 491 (1906); Powers v. Worcester, 210 Mass. 471 (1912). See also Troy Cotton and Woolen Manufactory v. Fall River, 167 Mass. 517 (1897), holding that if a manufacturing corporation can in any event be estopped from contending that the valuation is excessive, it can only be when it has made representations of the value of its property to the assessors, intending that they should act thereon, and they have been actually misled thereby. 21 Welch v. Boston, 211 Mass. 178 (1912); Sears v. Nahant, 221 Mass. 437, 442 (1915). 22 In Hopkins v. Reading, 170 Mass. 568 (1898) it was held that absence G. L. c. 59, § 61] ment that a list be brought in,23 although reliance on assurances by the assessors that a formal list was not required might under some circumstances constitute a reasonable excuse for delay.24 But the mere fact that the assessors knew the facts concerning the property in question 25 or entered into a discussion with the owner concerning its liability to taxation 26 is not a reasonable excuse for not bringing in the list within the required period. It must be remembered that an excuse for delay, however good, is no justification for not filing a list at all,27 and that even if there is a reasonable excuse for delay, if the list is not brought in as soon as the cause of delay ceases to operate, the right to abatement is lost.28 The meaning of the statute is that if a person liable to taxation does not furnish the assessors with the 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.20 Even if a list is duly filed the assessors are not bound by the valuation contained therein. It was so held in 1846 when the statute left it in doubt;30 and in the next revision of the statutes all possible doubt was removed. It is of course open to a person taxed who has filed a list to contest the assessors' valuation of his property. If the list is duly filed and no questions are asked the person bringing it in, the assessors cannot add items of taxable property to those contained in 31 from the state was a reasonable excuse for delay. When an executor is not appointed in season to bring in his list within the time prescribed, there is sufficient excuse for delay as a matter of law. Collector of West Bridgewater v. Dunster, 231 Mass. 291 (1918). So also in Parsons v. Lenox, 228 Mass. 231 (1917), insufficient knowledge by an executor of the affairs of his testator was held a reasonable excuse. In Sears v. Nahant, 221 Mass. 437 (1915) however it was held that the advice of counsel that a party was not taxable was not a reasonable excuse, if the contention of the assessors to the contrary was clearly explained to the party and was in accordance with the law. 23 Boston Rubber Shoe Co. v. Malden, 216 Mass. 508 (1914); Parsons v. Lenox, 228 Mass. 231 (1917). 24 Lowell v. Middlesex County Commissioners, 3 Allen 546 (1862); Charlestown v. Middlesex County Commissioners, 101 Mass. 87 (1869). 25 Boston Rubber Shoe Co. v. Malden, 216 Mass. 508 (1914). 26 Atlantic Maritime Co. v. Gloucester, 214 Mass. 348 (1913). 27 Charlestown v. Middlesex County Commissioners, 101 Mass. 87 (1869). 28 Parsons v. Lenox, 228 Mass. 231 (1917). 29 Harwood v. North Brookfield, 130 Mass. 561 (1881). 30 Newburyport v. Essex County Commissioners, 12 Met. 211 (1846). [G. L. c. 59, § 61 the list.32 If the person bringing in the list refuses to answer on oath questions relating to his property, or his answers disclose additional taxable property, the assessors are not bound by the list; but a person who has filed a list is not precluded from an abatement by refusal to answer the questions if he is on the facts entitled to one.34 If a person is assessed who is not liable to taxation and has filed no list he has other remedies than a petition for abatement;35 but if he chooses to avail himself of the latter proceeding he must file a list. Inasmuch however as he would not be in the class described in the assessors' notice to bring in lists within a specified period, any time before filing his petition for abatement would be seasonable for bringing in the list. In recent years the statute has been amended so that innocent persons should not suffer from the default of others in respect to filing lists. The exemption of a tenant of real estate under obligation to pay more than a moiety of the taxes thereon. was introduced in 1888. It has been held that it does not apply to a tenant who is also part owner of the land, for the neglect to file a list is his own.36 A corporation which is notified by the commissioner of corporations and taxation that he has valued its real estate less than the local assessors may apply to the assessors for an abatement and appeal if necessary, though it has filed no list.37 While corporations are bound to furnish lists, the difference in the law relating to taxation of corporations results in a difference in the contents of the lists. In case of a national bank a list showing the name of each shareholder with his residence and number of shares is sufficient to entitle it to maintain a petition for abatement.38 It has been held that when a corporation is required by its charter to apportion its funds for the purpose of taxation among eight towns and to notify the 32 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). 33 Hall v. Middlesex County Commissioners, 10 Allen 100 (1865); Wright v. Lowell, 166 Mass. 298 (1896). 34 Wright v. Lowell, 166 Mass. 298 (1896). 35 Infra pages 400 to 412 inc. 36 Ashley v. Bristol County Commissioners, 166 Mass. 216 (1896). 87 Lowell v. Middlesex County Commissioners, 146 Mass. 403, 410 (1888); Essex Co. v. Lawrence, 214 Mass. 79, 87 (1913). 38 National Bank of Commerce v. New Bedford, 155 Mass. 312 (1892). G. L. c. 59, §§ 62-64 inc.] assessors of the respective towns of the apportionment, it is not obliged to also file lists.39 A tax on a person who has filed a list is not invalid because other persons taxable in the city or town did not file lists of their property.10 40 Payment of Costs by Petitioner SECTION 62. A person applying for an abatement shall pay the legal costs accruing before it is made. Even if the petition for abatement is granted, the petitioner is not entitled to receive back the costs paid in accordance with the provisions of this section. SECTION 63. Notice of Decision Assessors shall, within ten days after their decision on an application for an abatement, give written notice thereof to the applicant. Although this section first appeared in the statute authorizing appeals to the superior court, it is applicable to the action of the assessors whatever course the petitioner may subsequently take. Proceedings before the assessors are informal and the requirement of a written notice of their decision by implication authorizes other steps before them to be oral.1 Appeal to County Commissioners SECTION 64. A person aggrieved by the refusal of assessors to abate a tax may, within thirty days after receiving the notice provided in the preceding section, appeal therefrom by filing a complaint with the clerk of the county commissioners, or of the board authorized to hear and determine such complaints, for the county where the property taxed lies, and if on hearing the board finds that the property has been overrated, it shall make a reasonable abatement and an order as to costs. If the list required to be brought in to the assessors was not brought in within the time specified in the notice required by section twenty-nine, the tax shall not be abated unless 39 Greenfield v. Franklin County Commissioners, 135 Mass. 566 (1883). 40 White v. New Bedford, 160 Mass. 217 (1893). 1 Page v. Melrose, 186 Mass. 361 (1904). [G. L. c. 59, § 64 the appellate board finds good cause for the delay or unless the assessors have so found as provided in section sixty-one. No costs shall be allowed to a complainant who has failed to file a list as required by law. Soon after the first settlement of the colony it was provided that a person whose tax the assessors refused to abate might appeal to the county court,' and with the change from the court of sessions to the county commissioners the right of appeal has been maintained to the present time. The proceedings before the county commissioners partake only partially of the nature of an appeal. If the assessors had no jurisdiction to abate the tax,2 or no option to refuse to abate it,3 the proceedings before the county commissioners must terminate as they should have terminated before the assessors; but, if the abatement depends on a disputed valuation, the county commissioners consider the whole matter afresh.* If a list is duly filed and no questions are asked the person bringing it in, the assessors cannot lawfully assess him on property not included in the list; and the only controversy that can. arise in such a case must relate to the valuation of the property so included. The county commissioners should estimate the fair cash value of the property, irrespective of the value placed by the assessors upon similar property in the same city or upon the same property in previous years. If the petitioner shows that one item of his property is over-assessed the city or town cannot offer evidence that other items were under-assessed; for the county commissioners have no authority to increase the taxes upon any piece of property. In general in proceedings for the abatement of a tax the same rules of evidence are enforced 1 Anc. Chart. pp. 69, 70 (1641). 2 Otis Co. v. Ware, 8 Gray 509 (1857). 3 Chase v. Boston, 193 Mass. 522 (1907). 6 4 National Bank of Commerce v. New Bedford, 155 Mass. 312 (1892). 5 Chase v. Boston, 193 Mass. 522 (1907); National Fireproofing Co. v. Revere, 217 Mass. 63 (1914). Lowell v. Middlesex County Commissioners, 152 Mass. 372 (1890). See also Chicopee v. Hampden County Commissioners, 16 Gray 38 (1860). As to what constitutes fair cash value for purposes of taxation, see supra page 267. 7 Lowell v. Middlesex County Commissioners, 3 Allen 546 (1862); Massachusetts General Hospital v. Belmont, 238 Mass. 396 (1921). The tax on a parcel of land and the buildings thereon being however a unit (supra page 191) an excess in the valuation of one may be balanced by a deficiency in the other, Massachusetts General Hospital v. Belmont, 238 Mass. 396 (1921). |