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[G. L. c. 63, §§ 56, 57 determined monthly in such manner as the commissioner shall deem just.

This statute was enacted in 1918, to take effect after the conclusion of the war. The only provisions now in force specifically applicable to trust companies in the chapter relating to the taxation of corporations besides the one now under discussion are the statutes relating to the taxation of their savings departments and the minimum tax established by section fiftyeight.

It was provided in the Public Statutes that domestic trust companies and similar institutions should be subject to the provisions of the chapter relating to the taxation of corporations so far as the same were applicable thereto; and that they should be taxed upon property held in trust by them or deposited with them according to the terms of their respective charters. In 1888 provision was made for the incorporation of trust companies by general law. Companies so incorporated were to be subject to the general corporate franchise tax on their capital stock. Deposits which might be withdrawn on demand or on ten days' notice were to be taxed to the depositors. Other deposits were to be taxed to the company at three-fourths the rate of the franchise tax, and property held in trust which would be taxable if held by an individual trustee resident within the commonwealth was to be taxed at the full rate of the corporate franchise tax. The provision as to the taxation of demand deposits was retained until the enactment of the income tax act in 1916; that as to the taxation of other deposits was dropped in 1908. The tax on property held in trust was reduced in 1909 to the rate upon which savings banks are taxed, but restored to the rate of the corporate franchise tax in the following year. Upon the enactment of the income tax act, property held in trust by corporations was made taxable on its income in the same manner as property held by individual trustees.

Conflict between Valuations of Commissioner and Assessors

SECTION 57. If the value of the works, structures, real estate, machinery, poles, underground conduits, wires and pipes of a corporation subject to local taxation within the commonwealth, as determined by the commissioner, is less than the value thereof as de

G. L. c. 63, § 57]

termined by the assessors of the town where it is situated, he shall give notice of his determination to such corporation; and, unless within one month after the date of such notice it applies to said assessors for an abatement, and, upon their refusal to grant an abatement, prosecutes an appeal under section sixty-four of chapter fifty-nine, giving notice thereof to the commissioner, the valuation of the commissioner shall be conclusive upon said corporation.

Entirely apart from the foregoing provision, a corporation, in contesting municipal taxation, has all the remedies of a natural person. It may apply for abatement if the tax is excessive' or sue at common law to recover it back if it is wholly void. The foregoing section, taken in connection with section fifty-nine, is required to complete the symmetry of the system of taxing corporations. The object of the legislature in requiring deductions from the aggregate value of the shares in ascertaining the amount of the excise tax was to prevent double taxation in fact if not in form and to insure that property of a corporation which under the laws was subject to local taxation should not be included in the valuation upon which the excise on the franchise is based."

Although the commissioner in making his deductions may accept the valuation of the local assessors upon the property of a corporation locally taxable he is not bound to do so. If he makes a lower valuation than the assessors he is required to notify the corporation, and unless it applies for an abatement it will be subject to double taxation. In such a case, when the application for abatement is heard, the corporation may have but little interest in the outcome, for whatever abatement of the property tax it may secure is added to the excise tax and if it secures no abatement of the property tax the excise tax will be proportionally smaller. The commonwealth and the city or town in which the property is situated are the real parties in interest and the main object of the hearing is to determine what valuation shall be binding upon each of them, thus affecting

'See for example Tremont & Suffolk Mills v. Lowell, 178 Mass. 469 (1901); Milford Water Co. v. Hopkinton, 192 Mass. 491 (1906).

2 See for example Boston Manufacturing Co. v. Newton, 22 Pick. 22 (1839); Boston & Sandwich Glass Co. v. Boston, 4 Met. 181 (1842); Boston Water Power Co. v. Boston, 9 Met. 199 (1845); Masonic Educational, etc., Trust v. Boston, 201 Mass. 320 (1909).

* Firemen's Fire Insurance Co. v. Commonwealth, 137 Mass. 80 (1884).

[G. L. c. 63, §§ 57, 58 the amount of the excise or tax which each is respectively entitled to assess or collect. It has accordingly been held that the right of a corporation under such circumstances to abatement on appeal is not lost by its own previous failure to file a sworn list of its estate.

Although the statute refers to the section applicable to appeals to the county commissioners only, a corporation notified under this section which has filed no list may employ the concurrent remedy of an appeal to the superior court.

6

It is to be noted that these provisions are not applicable to the valuation of the machinery and other structures of telephone and telegraph companies, as such structures are valued by the commissioner himself and certified by him to the assessors."

Rate of Taxation

SECTION 58. Every corporation subject to section fifty-three or fifty-four shall annually pay a tax upon its corporate franchise, after making the deductions provided for in section fifty-five, at a rate equal to the average of the annual rates for three years preceding that in which such assessment is laid, the annual rate to be determined by an apportionment of the whole amount of money to be raised by taxation upon property in the commonwealth during the same year, as returned by the assessors of the several towns under section fortyseven of chapter fifty-nine, upon the aggregate valuation of all towns for the preceding year, as returned under sections forty-seven and forty-nine of chapter fifty-nine; but the total amount of the tax to be paid by a trust company in any year upon the value of its corporate franchise shall amount to not less than two-fifths of one per cent of the total amount of its capital stock, surplus and undivided profits at the time of said assessment, as found by the commissioner.

The development of the statutes by which the rate of taxation upon corporate franchises was established is discussed in

'Lowell v. Middlesex County Commissioners, 146 Mass. 403, 409 (1888). Although it is nowhere expressly provided in the statutes that if a corporation prosecutes its appeal unsuccessfully the result is conclusive against the commissioner and he must grant an abateraent, the plain implication of the statute justifies the assumption that this is the law.

Lowell v. Middlesex County Commissioners, 146 Mass. 403, 409 (1888); Essex Co. v. Lawrence, 214 Mass. 79, 87 (1913).

Essex Co. v. Lawrence, 214 Mass. 79, 87 (1913).

See G. L. c. 59, §§39, 40, 41, 42 and 73, supra, pages 240, 303.

G. L. c. 63, §§ 58-60] connection with section thirty-two. It is to be noted that the maximum and minimum limitation established in 1903 was applicable only to business corporations and so was never in force in respect to the corporations now subject to the tax imposed by this section.

Additional Excise upon Abatement of Local Tax

SECTION 59. When the commissioner has received notice of an abatement of the taxes of any corporation under section seventy-four of chapter fifty-nine, he shall assess upon such corporation an additional tax upon its corporate franchise value, in such amount as shall make the total franchise tax equal that which would have been assessed had the valuation as established by said abatement been adopted by the commissioner when making his original assessment upon the corporate franchise value of such corporation, which additional tax shall be paid and collected as an addition to the franchise tax next to be assessed upon said corporation after such abatement; but such additional tax, when collected, shall be distributed as if it were part of the original tax.

It was originally held that the property tax and the excise were not necessarily complementary and that a corporation was not deprived of its right to an abatement of its property tax by the fact that the commissioner had accepted the assessors' valuation of the property in fixing the amount of the excise and that the excise had been paid;1 subsequently however the statute recited above was enacted, giving the commissioner the right to assess an additional excise equal to the amount of such abatement.

Whenever any abatement of the local property tax is finally made to any corporation taxable under chapter sixty-three, the assessors, county commissioners or court, as the case may be, which makes the abatement is required by law to forthwith notify the commissioner of corporations and taxation, so that he may be in position to assess the additional excise accordingly.2

Notice of Tax and Application for Correction

SECTION 60. The commissioner shall annually, as soon as may be after the first Monday of August, give notice to the treasurer of every Tremont & Suffolk Mills v. Lowell, 178 Mass. 469 (1901). G. L. c. 59, §74, supra, page 303.

[G. L. c. 63, §§ 60, 61 corporation, company or association liable to any tax under section fifty-eight, of the amount thereof, the time when due, the right to apply for correction, and the right of appeal, all as herein provided. Said tax shall be due and payable to the state treasurer within thirty days after the date of such notice, but not before October twentieth. The taxpayer may apply to the commissioner, within thirty days after the date of the notice, for correction of the tax, and if he so applies, may, in default of settlement, be heard on such application by the board of appeal.

The notice referred to in this section is of course what is ordinarily known as the tax bill. Prior to 1919 there was no provision of statute for the correction of the tax by the commissioner himself, and the only remedy of a taxpayer aggrieved by the valuation was to apply to the board of appeal, although, in practice, an informal application to the commsisioner often resulted in the correction of a tax. In 1919 provision was made for application to the commissioner as a step preliminary to the filing of an application with the board of appeal. The procedure in case of appeal to the board of appeal is regulated by section seventy-one.

Commutation Tax on Street Railways

SECTION 61. A street railway or electric railroad company, including a company whose lines are located partly within and partly without the commonwealth, whether chartered or organized under the laws of the commonwealth or elsewhere, shall annually, on or before October fifteenth, make and file in the office of the assessors of every town where any part of the railway or railroad operated by it is situated a return signed and sworn to by its president and treasurer, stating, as of September thirtieth preceding the return, if a street railway company, the length of track operated by it in public ways and places in such town, and also the total length of track operated by it in public ways and places, and if an electric railroad company stating the length of track operated by it longitudinally upon public ways and places in such town, and also the total length of track

It has been held that if after a corporation has been duly notified of the tax assessed upon it the tax is reduced and no further notice given to the corporation the tax is not invalidated, for the reduction may be presumed to have been made with the assent of the corporation. Commonwealth v. New England Slate & Tile Co., 13 Allen 391 (1866).

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