[G. L. c. 59, § 69 less only those contained in the sections relating to proceedings for abatement. It is customary, ex majore cautela, to pay the tax under protest, but a protest is not necessary. The statute which requires payment under protest as a condition precedent to the recovery back of a tax applies only to actions at common law.3

In the requirement of prepayment it would seem that there is a difference between proceedings before the county commissioners and those before the superior court. An abatement by the former, if the tax has not been paid, gives the person assessed the right to discharge the tax by payment of less than the amount assessed, and if the tax has been paid special statutory provision is made for paying it back; whereas no other effect is provided for an abatement by the latter than the usual outcome of a successfully prosecuted action at law-a judgment for a specified sum.

4

The original statute of 1890 made no provision for the repayment of interest on the sum abated, but in 1895 the requirement of interest was inserted." When an abatement is refused the town may recover its expenses and costs of the applicant, but the town cannot recover the sums which it has paid to its counsel for defending the case as part of such expenses."

Reimbursement, Interest and Costs

SECTION 69. A person whose tax has been abated shall, if the tax has been paid, be reimbursed by the town to the amount of the abatement allowed, with interest from the time of payment of said tax and all charges paid therewith except legal costs paid as provided in section sixty-two.

This section has no application to proceedings before the superior court. It was enacted in substantially its present form many years before appeals to the superior court were authorized,

2 Thayer Academy v. Assessors of Braintree, 232 Mass. 402 (1919). 3 G. L. c. 60, § 98, infra page 406. So also the other requirement of that statute, that no suit shall be brought to recover back a tax unless brought within three months after payment of the tax has no application to proceedings for abatement. Thayer Academy v. Assessors of Braintree, 232 Mass. 402 (1919). 4 Boott Cotton Mills v. Lowell, 159 Mass. 383 (1893).

5 G. L. c. 59, § 69, infra page 300.

6 See Tremont & Suffolk Mills v. Lowell, 165 Mass. 265 (1896).

7 Sears v. Nahant, 215 Mass. 324 (1913).

G. L. c. 59, § 70] and there are special provisions in the statute relating to appeals to the superior court applicable to the same subjects.1

The county commissioners have no authority to allow a taxpayer who has prevailed before them in his petition for abatement the costs of prosecuting the petition. The provision as to charges is intended only to enable a party to receive back any of the legal charges and fees which he may have been obliged to pay the collector by reason of the enforcement of payment of the tax after the application for an abatement had been made and does not authorize the recovery of a compensation in the form of costs for time and trouble in prosecuting the application for abatement.2

It was held in the absence of express provision that a person who paid his tax and secured an abatement was not 'entitled to interest upon the amount abated except from the date of demand; but in 1894 the provision that interest be paid from the time of payment was inserted. This statute did not apply to proceedings in the superior court and there was no provision for interest upon abatements made there until the following year.*

There is some doubt whether the provision as to interest applies to abatements made by the assessors themselves. Although the statute is broad enough to cover abatements by the assessors, it is the practice in Boston and some other cities not to pay interest on abated taxes unless the abatement was made by a higher tribunal than the assessors.

Certificate of Abatement

SECTION 70. A person whose tax has been abated shall be entitled to a certificate thereof from the assessors, clerk of the commissioners or other proper officer.

This statute also has no application to abatements by the superior court. The certificate provided for by this section cannot be entered in court and no court can make up a judgment

1 Tremont & Suffolk Mills v. Lowell, 165 Mass. 265 (1896).

2 Lowell v. Middlesex County Commissioners, 3 Allen 546 (1862); Charlestown v. Middlesex County Commissioners, 109 Mass. 270 (1872).

3 Lowell v. Middlesex County Commissioners, 3 Allen 550 (1862); Boott Cotton Mills v. Lowell, 159 Mass. 383 (1893).

4 See as to this statute Tremont & Suffolk Mills v. Lowell, 165 Mass. 265 (1896).

[G. L. c. 59, §§ 71-73 inc. upon it alone.1 It would seem however that it might be offered in evidence whenever it was material. Its primary purpose is however to satisfy the collector that the tax has been abated.

Abatement of Uncollectible Taxes

SECTION 71. If a collector is satisfied that a poll tax or tax upon personal property, or any portion of said tax, committed to him or to any of his predecessors in office for collection, cannot be collected by reason of the death, absence, poverty, insolvency, bankruptcy or other inability of the person assessed to pay, he shall notify the assessors thereof in writing, on oath, stating why such tax cannot be collected. The assessors shall act on such notification within thirty days after its receipt and, after due inquiry, may abate such tax or any part thereof, and shall certify such abatement in writing to the collector; and said certificate shall discharge the collector from further obligation to collect the tax so abated. But no poll tax shall be abated under this section within the calendar year in which assessed.

SECTION 72. Whenever the commissioner deems any lands to have been assessed at a valuation insufficient to meet the charges and expenses of collecting the tax thereon, he may in writing authorize the assessors to abate the tax of their own motion as a tax which ought not to have been assessed. The authorization shall form a part of the assessors' records of abatements.

Inasmuch as the polls and any portion of the estates of persons who by reason of age, infirmity and poverty are in the judgment of the assessors unable to contribute fully toward the public charges are exempt from taxation, the assessors under their general power to abate taxes which were improperly assessed and without a petition from the person assessed or notice from the collector may abate the tax on such a person after it has been committed to the collector.1

Abatement of Taxes on Telephone and Telegraph

Companies

SECTION 73. Any company aggrieved by the taxes assessed on it relating to any property valued in accordance with section thirty

1 Boott Cotton Mills v. Lowell, 159 Mass. 383 (1893).

1 Gordon v. Sanderson, 165 Mass. 375 (1896).

G. L. c. 59, § 74]

nine may, within six months after the date of its tax bill, apply to the commissioner for an abatement thereof; and if the commissioner finds that the company is taxed at more than its just proportion, or upon an assessment of any of its said property in excess of its fair cash value, he shall make a reasonable abatement. No company which has not duly filed the return required by section forty-one shall have an abatement unless it shall furnish to the commissioner a reasonable excuse for the delay, or unless such tax exceeds by more than fifty per cent the amount of the tax which would have been assessed on such property if the return had been seasonably filed, and in such case only the excess over such fifty per cent shall be abated. Whenever any application for abatement hereunder is made, the commissioner shall give notice thereof to the assessors of the town in which is located any of the property with reference to which an abatement of the tax is asked for, and such assessors may appear before the commissioner and be heard by him with relation to the subject of the abatement. The commissioner shall, within ten days after his decision on an application for abatement hereunder, give written notice thereof to the applicant and to the assessors. A company aggrieved by the refusal of the commissioner to abate a tax hereunder may prosecute an appeal from his decision in the manner. and to the tribunals provided for a person aggrieved by the refusal of assessors to abate a tax, and all laws relating to such an appeal from a refusal of assessors to abate a tax shall apply in proceedings hereunder.

This statute makes provision for the abatement of taxes on the structures of telephone and telegraph companies which, though taxed locally, are valued for purposes of local taxation by the commissioner of corporations and taxation.

Notice to Commissioner of Abatement of Local Taxes on

Corporations

SECTION 74. Whenever an abatement is finally made to any corporation taxable under chapter sixty-three upon any tax assessed by the assessors of any town, upon or in respect of works, structures, real estate, machinery, poles, underground conduits, wires and pipes, the assessors, commissioners or court granting such abatement shall forthwith notify the commissioner thereof, and shall state in such notice what sum was determined by such assessors, commissioners or

[G. L. c. 59, § 75 court to have been the full and fair cash value of such works, structures, real estate, machinery, poles, underground conduits, wires and pipes on the first day of April on which the tax so abated was originally assessed.

Omitted Assessments

SECTION 75. If the real or personal estate of a person, to an amount not less than one hundred dollars and liable to taxation, has been omitted from the annual assessment of taxes, the assessors shall between December tenth and twentieth following, both inclusive, assess such person for such estate. The taxes so assessed shall be entered on the tax list of the collector, who shall collect and pay over the same. Such additional assessment shall not render the tax of the town invalid although its amount, in consequence thereof, shall exceed the amount authorized by law to be raised.

This statute as originally enacted in 1868 provided in substance that the assessors might add to the tax list after it had been committed to the collector and before the first day of August real or personal estate to an amount not less than five hundred dollars which they should "discover" to have been omitted from the last annual assessment. Previous to its enactment, while no time other than a reasonable one was fixed for committing the tax list and warrant to the collector and the assessors might continue to add property to the list up to the moment of its commission, after the warrant had left their hands they had no authority to make any further assessment, even with the consent of the person assessed.' The various amendments to the statute have related principally to the time in which the additional assessment might be made; in 1873 the time was extended to the fifteenth of September and the amount reduced to one hundred dollars; in 1886 it was provided that the assessment might be made any time after the rate had been fixed, whether before or after the commission of the warrant, and before the sixteenth of December; and in 1888 the time for the additional assessment was limited to "between the fifteenth and twentieth days of December." In 1911 the period was extended to "between the tenth and twentieth days, both inclusive, of December."

1 Opinion of the Justices, 18 Pick. 575 (1836).