G. L. c. 59, § 75]

In the various forms in which the statute appeared prior to the enactment of the Revised Laws in 1902 the assessors were authorized to tax only such property as they should "discover" to have been omitted; and it was held in 1884 that the assessors could not be said to have discovered that there had been an omission until they were satisfied of the fact as a board, and consequently property might be assessed under this statute, although one of the assessors knew of its existence before the list and warrant were committed to the collector if he communicated the facts to his associates afterward. In the Revised Laws and subsequent enactments all allusion to discovery has been discarded and the statute does not now require property to be newly discovered in the sense of coming for the first time to the knowledge of the assessors in order that it may be legally.assessed as omitted property. If the assessors, through want of knowledge of facts or ignorance of the law or as to their duty or for any other honest reason have failed to include property in the annual assessment, it is omitted property within the meaning of the statute.3

The tax on omitted property is not a new and separate tax but is a part of the annual assessment, made as of the first day of April. It should be assessed upon a person deceased if he was living on the first day of April;5 and a person properly taxable within the town for any property who is subjected to an additional assessment under this statute upon property that he does not own or that is not taxable has no remedy but an application for abatement."

There is no requirement that property subjected to an assessment under this statute be iternized or specified.' The property included in the additional assessment is "entered on the tax list of the collector" within the meaning of the statute although contained in a separate book or written on a separate piece of paper. Whether or not a new warrant is necessary, it is within the implied powers of the assessors to issue one if they see fit." 2 Noyes v. Hale, 137 Mass. 266 (1884).

3 Sears v. Nahant, 215 Mass. 329 (1913).

4 Harwood v. North Brookfield, 130 Mass. 561 (1881); Noyes v. Hale, 137 Mass. 266 (1884).

5 Noyes v. Hale, 137 Mass. 266 (1884).

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

7 Noyes v Hale, 137 Mass. 266 (1884).

8 Noyes v. Hale, 137 Mass. 266, 273 (1884).

9 Noyes v. Hale, 137 Mass. 266, 273 (1884).

[G. L. c. 59, §§ 76, 77 Under the provisions of this statute, the discovery of a large amount of property located in a small town, after the tax rate had been fixed, would subject the owner to the payment of an onerous tax and might result in the collection of more money by taxation than the needs of the town would require; but the legislature having imposed no limit the court cannot create one.10 The danger of such an assessment may have been intended as one of the inducements to the owners of taxable property to furnish lists.

Revision of Valuation

SECTION 76. If the commissioner deems any property subject to taxation not properly valued, he may recommend to the assessors a revision of its valuation, and they may make an assessment upon the additional value in the manner and within the time provided by the preceding section and subject to its provisions.

3

This statute originated with a report of the Commission on Taxation appointed in 1907,2 was omitted in the codification of the tax laws in 1909 and was re-enacted in 1910 at the recommendation of the tax commissioner. As enacted it did not contain any limitations as to time; but it was held that the limitations of the preceding section were applicable, and that a revaluation could not be made after the twentieth of December in any year. In the codification of the General Laws the wording of the statute was modified to conform to this decision.

Reassessment of Taxes

SECTION 77. Every tax except a poll tax, which is invalid by reason of error or irregularity in the assessment and which has not been paid, or which has been recovered back, may be reassessed by the assessors for the time being, to the just amount to which, and upon the estate or to the person to whom, it ought at first to have been assessed, whether such person has continued an

10 Noyes v. Hale, 137 Mass. 266, 272 (1884). See for example, Sears v. Assessors of Nahant, 205 Mass. 558 (1910), and Cheney v. Assessors of Dover, 205 Mass. 501 (1910). In the latter case an assessment on the personal estate of one person was more than twice the amount of the entire appropriation of the town for a year. Such extreme cases are of course not so likely to arise since the enactment of the income tax law.

1 St. 1908, c. 550, § 4.

2 Under c. 129 of the Resolves of 1907.

3 St. 1910, c. 260, § 1.

4 Gannett v. Cambridge, 218 Mass. 60 (1914).

G. L. c. 59, § 78]

inhabitant of the same city or town or not. An alienation of the real estate assessed shall not defeat a re-assessment, if made within two years after the tax first assessed was committed to the collector; but the lien provided by section thirty-seven of chapter sixty shall terminate as therein provided.

SECTION 78. Taxes reassessed under the preceding section shall be committed to, and collected and paid over by, the collector for the time being, in the same manner as other taxes, except that the name of the person to whom they were originally assessed shall be stated in the tax list; and the bond of such collector shall apply to such reassessed taxes.

In the early part of the last century, in the absence of any statute relating to re-assessment, it was held that when an entire assessment was invalid by reason of an error or irregularity in the assessment, whether the tax list had been committed to the collector or not, the assessment was a nullity and could be treated as such and a re-assessment could be made in the proper form;1 if however the entire assessment was not invalid, but was objectionable because it included the polls and estates of various persons who were not properly taxable in the place where the assessment was made, a re-assessment could not lawfully be made. One who could pick a flaw in the assessment so far as it related to him or in the proceedings of the town in making the appropriations for which the tax was levied could wholly escape taxation for the year. In consequence of decisions holding an entire tax invalid because of an irregularity which affected only a trivial portion of the amount assessed, a statute was enacted in 1859 which put an end to almost all wrangling over technical defects in the assessment of taxes by providing that if a tax was partially invalid only the illegal excess could be recovered back and all proceedings for the collection of the tax by sale or levy should be valid;3 that an action to recover back a tax could be brought only within three months after the payment; and that a tax invalid by reason of an error or irregularity in the assessment might be re-assessed in proper

1 Pond v. Negus, 3 Mass. 230 (1807); Libby v. Burnham, 15 Mass. 144, 147 (1818).

2 Inglee v. Bosworth, 5 Pick. 498 (1827).

3 St. 1859, c. 118, § 4, now G. L. c. 59, § 82, infra page 311; G. L. c. 60, § 98, infra page 400.

4 St. 1859, c. 118, § 3, now G. L. c. 60, § 98, infra page 400.

[G. L. c. 59, § 78

form. The latter provision is the statute now under consideration.

5

A re-assessment may be made after the expiration of the year in which the original assessment was levied, by an entirely new board of assessors, but whenever made it must be based upon the valuation of the year in which the tax was first assessed and upon the votes of the town and the warrants of the state and county requiring it. A re-assessment may be used to cure any description of error in regard to either amount, estate or person,' but the power to re-assess gives no authority to vacate a valid tax, and when the original assessment is valid a reassessment is invalid." When however a re-assessment is made by the assessors at the request of persons interested, although the original assessment is valid, such persons cannot object to the re-assessment on the ground that the assessors had no authority to make it.10

A re-assessment may be made when the interests of the persons assessed are several and the assessment has been made to them jointly, but there must be a distinct and separate judgment of the assessors fixing the value of the interest of each and the amount of tax to be assessed separately to each.11 When the error which necessitates a re-assessment is such as to invalidate the entire assessment a new list and a new warrant are indispensable;12 but when the error is in an individual assessment the assessors may change and add to the original list after it has been committed to the collector without issuing a new warrant.1

13

It was provided in 1881 that taxes on real estate might be re-assessed any time within two years from the time the tax

5 Hubbard v. Garfield, 102 Mass. 72 (1869).

6 Hubbard v. Garfield, 102 Mass. 72 (1869); Davis v. Boston, 129 Mass. 377 (1880). See also, Market National Bank v. Belmont, 137 Mass. 407 (1884). 7 Hubbard v. Garfield, 102 Mass. 72 (1869); Hunt v. Perry, 165 Mass. 287 (1896).

8 Farnsworth v. Boston, 121 Mass. 173 (1876).

9 Oakham v. Hall, 112 Mass. 535 (1873); Deane v. Hathaway, 136 Mass. 129 (1883).

10 Burr v. Wilcox, 13 Allen 269 (1866).

11 Jennings v. Collins, 99 Mass. 29 (1868); Hunt v. Perry, 165 Mass. 287 (1896).

12 Hubbard v. Garfield, 102 Mass. 72 (1869).

13 Hubbard v. Garfield, 102 Mass. 72 (1869); Hunt v. Perry, 165 Mass. 287 (1896).

G. L. c. 59, §§ 79-81 inc.] first assessed was committed to the collector, notwithstanding an alienation of the land; but it is elsewhere provided that there shall be no lien for taxes re-assessed if the property is alienated before the re-assessment." Accordingly when real estate wrongly assessed has been alienated 15 within two years, the re-assessment must be imposed within the two years, and can be collected only by distress of the goods of, or arrest of, or suit against the person who owned or occupied the land at the date of the original assessment and who was assessed in the re-assessment. In 1915 authority was granted for the re-assessment of taxes in case a tax title was adjudicated invalid on account of irregularity in the proceedings subsequent to the assessment, the re-assessment to be to the owner of record at the time of adjudication. This statute was in the form of an amendment to the statute now under consideration.16 In 1918 this amendment was repealed on the ground that it was probably unconstitutional," and as a substitute, provision made for the preservation of the lien in the case of an unsuccessful attempt to sell for taxes.18

There is nothing in the statutes authorizing re-assessment which makes a re-assessment obligatory upon the assessors when a person is assessed more than his due proportion, so that such person may treat the tax as void if it is not re-assessed.19 The re-assessment, to be valid, must of course be imposed upon the persons who should properly have been assessed in the first place, and if it is not so imposed it stands in no better position than an original assessment.20

Apportionment of Taxes on Real Estate Subsequently

Divided

SECTION 79. If real estate is divided by sale, mortgage, upon a petition for partition or otherwise after a tax has been assessed thereon

14 G. L. c. 60, § 37, infra page 349.

15 As to what constitutes alienation within the meaning of these statutes see infra page 351.

16 St. 1915, c. 237, § 17.

17 See Preliminary Report of Commissioners to Consolidate the General Laws, p. 111.

18 St. 1918, c. 257, §§ 46, 47, now contained in G. L. c. 60, § 37, infra, page 349.

19 Cone v. Forest, 126 Mass. 97 (1879).

20 Oakham v. Hall, 112 Mass. 535 (1873); Davis v. Boston, 129 Mass. 377 (1880).