G. L. c. 62, §§ 43, 44]

thereof at any time within six months after the date of the notice of the assessment, or, if he dies during said six months his executor or administrator may apply for such abatement within one month after his appointment; and if, after a hearing, the commissioner finds that the tax is excessive in amount or that the person assessed is not subject thereto, he shall abate it in whole or in part accordingly. If the tax has been paid, the state treasurer shall repay to the person assessed the amount of such abatement, with interest thereon at the rate of six per cent per annum from the time when it was paid. The commissioner shall notify the petitioner by registered letter of his decision upon the petition.

SECTION 44. No tax assessed on any person liable to taxation under this chapter shall be abated in any event unless the person assessed shall have filed, at or before the time of bringing his petition for abatement, a return as required by sections twenty-two to twentyfive, inclusive; and if he failed without good cause to file his return within the time prescribed by law, or filed a fraudulent return, or, having filed an incorrect or insufficient return, has failed, after notice, to file a proper return, the commissioner shall not abate the tax below double the amount for which the person assessed was properly taxable under this chapter.

The first step in contesting a tax assessed upon income in every case, whether the taxpayer denies the validity of the entire tax or contends that the tax is excessive in amount, is an application to the commissioner for the abatement of the tax. This procedure may be followed, whether the tax has been paid or not; and may be availed of although the tax has been paid without protest. Applications must be prepared upon a form prescribed by the commissioner and must be filed within six months of the date of the tax bill. If mailed, the postmark determines whether the filing is seasonable. If an informal application is seasonably filed, it will be considered if an application in proper form is sent promptly after notification by the commissioner that the first application was not in proper form, although the formal application is filed after the expiration of the statutory period. Applications for abatement based upon an error by the income tax division will be received at any time, if filed promptly after the discovery of the error by the taxpayer. In the original statute the period was three months, but by St. 1920, c. 385, §4, it was extended to six months.

[G. L. c. 62, §§ 44, 45 In case the application for abatement is based upon the three hundred dollar exemption granted by section eight, paragraph (a), or upon the accidental inclusion in the return of non-taxable income, the commissioner requires a statement in detail of the entire income of the taxpayer from all sources to accompany the application. An individual taxpayer, or a partner or beneficiary, is deemed to have waived any exemptions or deductions to which he is entitled and which have not been claimed on the return, unless an application for abatement is filed within the six months' period.

An application for abatement will be determined upon the statements in the application and such supplementary statements and affidavits as the taxpayer may file therewith, unless the taxpayer requests a formal hearing. If a hearing is asked for, notice of the time and place of the hearing will be given the taxpayer, and he may be represented by counsel if he so desires. If no postponement is asked for and granted, and the taxpayer does not appear either personally or by counsel at the time set for the hearing, the hearing will be declared closed.

The provision in section forty-four in regard to the filing of a return as a prerequisite to an application for abatement is similar to the law in regard to the abatement of taxes upon personal property. The income tax act however makes it clear that the return must be filed not later than the time when the petition is brought, whereas under the law in regard to personal property a list might be filed at any time before the hearing. The penalty in case a return was without reasonable excuse not filed. seasonably is increased from fifty per cent as it existed in the law relating to personal property to one hundred per cent; but the provision in regard to the penalty is still a limitation and not a direction, and if the commissioner, after he has assessed a tax more than twice too large, refuses to make any abatement whatever, the taxpayer has no remedy except the statutory appeal.

Appeal to the Board of Appeal

SECTION 45. Any person aggrieved by the refusal of the commissioner to abate, in whole or in part, under section forty-three, a

2 See G. L. c. 59, §61, supra, page 287.

G. L. c. 62, §§ 45, 46]

tax assessed under this chapter, may appeal therefrom, within thirty days after receiving notice of the decision of the commissioner, by filing a complaint with the clerk of the board of appeal from decisions. of the commissioner. If, on hearing, said board finds that the person making the appeal was entitled to an abatement under section fortythree from the tax assessed on him, it shall make such abatement as it sees fit. The decision of the board of appeal shall be final and conclusive, and shall be communicated in writing to the petitioner and the commissioner within five days thereafter.

SECTION 46. If the tax abated has been paid, the state treasurer shall repay to the petitioner the amount of the abatement and interest at the rate of six per cent per annum from the time of payment, upon presentation to him by the petitioner of the notice of the decision of the board.

The remedy by appeal to the board of appeal, which is the tribunal established by section twenty-one of chapter six of the General Laws' primarily to pass upon appeals in questions of valuation arising under the corporation tax law, was granted by the legislature in supposed analogy to the now obsolescent remedy of appeal to the county commissioners in the case of the local property tax. The paragraph is not very well phrased, but it apparently gives the board of appeal a wide discretion in abating taxes and in its original form permitted the board to remit the penalty of doubling the tax in case a taxpayer has failed without good cause to file a return within the prescribed time. In the consolidation of the General Laws the phraseology of this section was somewhat changed without any amendment by the legislature, so that whether intentionally or otherwise the powers of the board of appeal have been considerably cut down.

The provision that the decision of the board of appeal shall be final and conclusive is to be construed as applicable only to decisions of questions of fact, and not as depriving the taxpayer of his right to have questions of law finally determined by the supreme judicial court. The proper procedure in case the appellant desires to raise questions of law is to submit to the board requests for rulings of law in accordance with his contentions,

See Commissioner of Public Works v. Justice of Dorchester District, 228 Mass. 12 (1917).

[G. L. c. 62, §§ 46, 47 and if the decision of the board is adverse, to file in the supreme judicial court a petition for writ of certiorari, asking that the board be required to certify their proceedings, and their action upon the requests for rulings.

The provisions of section forty-six are not accepted literally by the state treasurer, and in practice payment is not made upon presentation to him of the notice of the decision of the board of appeal, but in due season a check for the amount abated is mailed to the taxpayer.

Appeal to the Superior Court

SECTION 47. (As amended by St. 1921, chapter 113, section 1.) Any person agrieved by the refusal of the commissioner to abate in whole or in part under section forty-three a tax assessed under this chapter, and who has paid his tax, may, instead of pursuing the remedy provided in section forty-five, appeal from such refusal by filing a complaint against the commissioner in the superior court for the county where such person resides or has his principal place of business, or, if such person claims a domicile without the commonwealth, by filing a complaint against the commissioner in the superior court for any county, within thirty days after the notice by the commissioner of his decision in accordance with section forty-three. An order of notice shall be issued by said court and served on the commissioner within such time as the court directs, and subsequent proceedings shall be conducted in accordance with sections sixty-five to sixty-eight, inclusive, of chapter fifty-nine. If an abatement is granted, the amount thereof shall be repaid to the complainant by the state treasurer, with interest at the rate of six per cent per annum from the time when the tax was paid, and costs.

This provision was designed to conform to the existing practice in the case of appeals from the refusal of assessors of a city or town to abate a tax upon real or personal property. In the original statute it was expressly provided that "if the complainant was subject to taxation under this act and did not file his return within the time prescribed by law, he shall not be entitled to have any part of his tax abated by the court, unless the court finds that he had good cause for his delay, or the tax 1 G. L. c. 59, §64, supra, page 293.

G. L. c. 62, §§ 47, 48]

commissioner had previously so found." In this respect, as in others, it was intended to follow the rule in the case of the property tax, and to include as one of the penalties for failure to file a return within the prescribed time an absolute denial of the right of appeal to the superior court, no matter how excessive the tax may have been, or how unwarranted the refusal of the commissioner to abate it. For some unexplained reason the words above quoted were omitted by the commissioners who prepared the General Laws, and whether the somewhat drastic rule which they established is still in force may be open to some doubt.

Statutory Remedies Exclusive

SECTION 48. (As amended by St. 1921, chapter 113, section 2.) The remedies provided by sections forty-three to forty-seven, inclusive, shall be exclusive, whether or not the tax is wholly illegal. But the word "exclusive" in this section shall not be construed to deprive any person of a right of action at law in any federal court.

The object of this provision is to exclude the possibility of a common law action of contract in the case of a tax wholly illegal, and to make all controversies, whether as to validity or amount, determinable in the statutory proceedings for abatement only, and thus to avoid the difficult and technical questions which had arisen in connection with local property taxes with respect to the propriety of the statutory or the common law proceedings.1

The last sentence of the foregoing section was added in 1921 and merely states the law as it previously existed, as a state statute cannot deprive any person of his remedies in the federal courts. A citizen of another state or nation upon whom an income tax is assessed by this commonwealth upon the ground that he is an inhabitant thereof may, if the amount involved exceeds three thousand dollars, contest his liability to the tax in the United States district court either by means of a bill in equity seeking to enjoin the commissioner from proceeding to collect the tax, or by paying the tax under protest and bringing an action at common law for money had and received against St. 1916, c. 269, §20.

3 Sears v. Nahant, 205 Mass. 558 (1910).

1 See G. L. c. 60, §98, supra, page 400.

2 Dunn v. Trefry, 260 Fed. Rep. 147 (1919), and see also Agassiz v. Trefry, 266 Fed. Rep. 8 (1920) affirming 260 Fed. Rep. 226 (1919).