[G. L. c. 63, § 44 to the tax on corporate income, if a corporation has filed a return of its income the commissioner is not permitted to disregard the return unless he notifies the corporation and gives it an opportunity to explain the apparent incorrectness of the return. This provision is borrowed from the statute imposing the tax on personal incomes.3 With regard to the verification of returns, the law does not respect the privacy of corporations as it does that of individual taxpayers, and the commissioner may either personally or by agent examine the books of a corporation which has filed a return, although he has no evidence in his possession which jusifies him in believing the return to be fraudulent or incorrect.* The right of the commissioner to inspect the books of a corporation liable to taxation was established under the original corporate franchise act and has continued in force continuously since that time. The visitorial powers of the state over corporations can be invoked to justify an examination of the books and papers of a corporation' which in the case of an individual taxpayer would constitute a violation of his constitutional rights." The provision of section forty-four incorporating by reference in the case of the part of the tax based on corporate excess the methods of assessment and collection and the administrative provisions applicable to the tax on corporate franchises of public service corporations and trust companies is of limited importance since the act of 1919 has become a part of the chapter on the taxation of corporations. The administrative provisions contained in sections sixty-eight to eighty inclusive are in terms applicable to all corporations taxed under the chapter, except when the contrary expressly appears, so that as to those sections this provision is not necessary. It would seem that the provisions contained in the last paragraph of section fifty-five, and in sections fifty-seven and fifty-nine, aimed at making the excise tax and the local tax on real estate complementary, are the only portions of the chapter which are incorporated into the business corporation tax by this provision. 6 St. 1864, c. 208, §16. See G. L. c. 63, §69, infra, page 591 for a discussion of the limits upon the right to inspect the books of a corporation. G. L. c. 63, §§ 45, 46] Assessment of Additional Tax SECTION 45. If the commissioner discovers from the verification of a return, or otherwise, that the full amount of any tax due under sections thirty to fifty-one, inclusive, has not been assessed, he may, at any time within two years after September first of the year in which such assessment should have been made, assess the same, first giving notice to the corporation to be assessed of his intention; and a representative of the corporation shall thereupon have an opportunity, within ten days after such notification, to confer with the commissioner as to the proposed assessment. After the expiration of ten days from the notification the commissioner shall assess the amount of the tax remaining due to the commonwealth, and shall give notice to the corporation so assessed. Any tax so assessed shall be payable to the state treasurer fourteen days after the date of the notice, and sections fifty-one and fifty-two shall apply to a tax so assessed. The earlier statutes gave, in terms at least, no power to the commissioner to assess an additional tax upon a corporation which had filed a return and been assessed thereon, even if it appeared from subsequent investigation that the tax was insufficient, except in case the valuation of the local assessors of the real estate and machinery of a corporation was reduced upon its application for abatement and the deduction which the corporation had previously received in determining its corporate excess was thus rendered too large.1 Double Assessment on Refusal to File Proper Return SECTION 46. If no return, or an incorrect or insufficient return, has been filed, and the corporation so in default refuses or neglects after notice to file a proper return, or if a fraudulent return has been filed, the commissioner shall determine the income of the corporation according to his best information and belief, and shall assess the same at double the amount so determined, which additional tax shall be in addition to the other penalties provided for by this chapter. This provision was not found in the earlier statutes for the taxation of corporations, but was copied from the similar pro1 St. 1904, c. 442, §2, now G. L. c. 63, §59, infra, page 583. [G. L. c. 63, §§ 46-48 vision in the law for the taxation of personal income,' which was in turn a development of the "fifty per cent penalty" so long in force in connection with the local property tax.2 Rules and Regulations SECTION 47. The commissioner shall make from time to time such reasonable rules and regulations, consistent with sections thirty to fifty-one, inclusive, as he may deem necessary for carrying out their provisions. In accordance with the provisions of this section the commissioner has issued a set of rules and regulations, known as Bulletin No. 355, and a supplement thereto containing a revision of the original rules. These bulletins contain not only administrative regulations but also the department's construction of certain sections of the statute, and are extremely useful; but taxpayers should remember that while the administrative regulations, when reasonable and not inconsistent with the statute, have the force of law, the rulings of the department with respect to the construction of the statute merely indicate the attitude the department has taken and are in no sense controlling if the matter is brought before the court. Collection SECTION 48. Except as provided by section forty-five, the commissioner shall annually, as soon as may be after the first Monday of August, give notice to the treasurer of each corporation of the amount of any tax levied upon it under sections thirty to fifty-one, inclusive, of the date upon which such amount is payable and of the time within which the corporation may apply for a correction of the tax; but failure to receive said notice shall not affect the validity of the tax. Such taxes shall be payable to the state treasurer within thirty days after the date of said notice, but not before October twentieth. In the collection of all taxes under said sections thirty to fifty-one, inclusive, the state treasurer shall have all the remedies provided by this chapter for the collection of other taxes upon corporations. The notice of the tax referred to in the foregoing section is 'G. L. c. 62, §36, supra, page 491. 2 G. L. c. 59, §61, supra, page 287. G. L. c. 63, §§ 48-52 inc.] what is ordinarily known as the tax bill. The means of collection are discussed in connection with sections seventy-two to seventy-six, inclusive. Penalties SECTION 49. If a corporation fails to file the returns required by sections thirty-five, thirty-six and forty when they are due, there shall be added to and become a part of the tax, as an additional tax, the sum of five dollars for every day during which the corporation is in default; but the commissioner may abate any such additional tax in whole or in part. SECTION 50. If any return required by section thirty-five, thirtysix or forty contains a false statement which is known or, by the exercise of reasonable care might have been known to the officer making it to be false, such officer and the corporation shall be liable for the amount of tax thereby lost to the commonwealth, and in addition to a penalty of not less than five hundred nor more than five thousand dollars. Application for Abatement SECTION 51. Application for the abatement or correction of any tax assessed under sections thirty to fifty, inclusive, may be made within thirty days after the date upon which the notice of assessment is sent, and from the decision of the commissioner thereon any corporation may appeal in the manner provided by section seventy-one. The remedies of a corporation for excessive or illegal taxes are discussed in connection with sections seventy-seven and seventy-eight. Effect of Unconstitutionality SECTION 52. If the excise imposed by section thirty-two on domestic business corporations, or that imposed by section thirtynine on foreign corporations, is declared unconstitutional by a final judgment, order or decree of the United States supreme court or the supreme judicial court of the commonwealth, sections thirty to fiftyone, inclusive, shall be null and void, and all laws repealed or made inoperative by chapter three hundred and fifty-five of the General Acts of nineteen hundred and nineteen shall thereupon be revived and continue in full force and effect as if the said chapter had not been en [G. L. c. 63, §§ 52, 53 acted. In such case the commissioner and local assessors shall forthwith assess all taxes that have become due under such prior laws, and the time for making any assessment or performing any other duty imposed or privilege granted by such laws shall be extended for a period of six months after the date when they are thus determined to be in force, and the time within which corporations may apply by petition to the supreme judicial court under section seventy-seven for the abatement of the excise imposed by section thirty-two, or of that imposed by section thirty-nine, shall be extended for the same period. If any part, section or subdivision of said sections thirty to fifty-one, inclusive, other than the provisions in sections thirty-two and thirty-nine imposing an excise, shall be declared unconstitutional, the validity of the remaining parts of said sections thirty to fifty-one, inclusive, shall not be affected thereby. When the business corporation tax law of 1919 was enacted, although great care was used not to exceed the constitutional limitations upon legislative power, it was feared that the tax imposed by the act might on some ground be held unconstitutional either by the state or the federal courts, and to avoid the loss of revenue which might result it was expressly provided that in such event the earlier provisions of law for the taxation of domestic and foreign business corporations, both by the state and by the local assessors, which had been repealed by the new law, should at once revive. It does not however now seem probable that it will be necessary to invoke this provision of the law. TAXATION OF PUBLIC SERVICE CORPORATIONS AND TRUST COMPANIES Returns SECTION 53. Every corporation organized under general or special laws of the commonwealth for purposes of business or profit, having a capital stock divided into shares, except banks whose shares are otherwise taxable under this chapter, except insurance companies with capital stock and mutual insurance companies with a guaranty capital or permanent fund whose premiums are otherwise. taxable under this chapter, and except corporations taxable under sections thirty to fifty-one, inclusive, in addition to all returns required by its charter, and in addition to all returns otherwise required |