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[G. L. c. 65, § 26 SECTION 26. At any time within three months after the date of the determination of value of any estate made by the commissioner under the preceding section, the commissioner may, at the request or with the consent of the persons by whom the tax is payable, alter such determination of value. If any such alteration is made, the commissioner shall notify the persons by whom the tax is payable of the alteration, and the period within which application may be made for the appointment of an appraiser or appraisers as provided by said section shall be three months from the date of said alteration of value by the commissioner. In all proceedings in the probate court under this or the preceding section, or by an appraiser or appraisers appointed by the court under either section, the commisioner shall receive notice thereof and may be heard.

The date as of when valuation is made has already been discussed.1 The original statute provided that the valuation should be made by the probate court; but the treasurer or any person interested in the estate might apply for the appointment of appraisers whose return when accepted by the court should be final. The appraisers' fees were to be paid by the treasurer. In 1905 the statute was amended by a provision that half of the appraisers' fees should be paid by the treasurer and half by the other party to the preceeding; and that the court might appoint a single appraiser. In 1907 the power of originally determining the value was given to the tax commissioner, and the executor, administrator or trustee, as well as the parties interested in the succession, were given authority to apply for an appraisal. The provisions for an alteration of the determination of value, now found in section twenty-six, were first enacted in 1912.

The provisions of section twenty-five furnish the exclusive remedy for a person aggrieved by an excessive valuation placed by the commissioner upon the property with respect to the passing of which the tax is assessed. The remedy of petition for abatement under section twenty-seven is available only when the tax is in whole or in part illegally assessed, and has no application to an excessive valuation of property the passing of which is subject to the tax. If no appeal is taken, the valuation of the commissioner is final.3

1 G. L. c. 65, §13, supra, page 636.

2 Attorney General v. Skehill, 217 Mass. 364 (1914).

Attorney General v. Roche, 219 Mass. 601 (1914). The administrator may

G. L. c. 65, §§ 26, 27]

An executor or administrator cannot apply under section twenty-five for a re-appraisal of only part of the property of the decedent. He cannot accept the valuation of the commissioner with respect to items of property which the commissioner has appraised at too low a value and invoke the remedy provided by the statute with respect to items which the commissioner has over-valued. If the tax is just, considering the property of the decedent in its entirety, the executor or administrator cannot complain if one or more items were overvalued.*

Assessment, Certification and Abatement

SECTION 27. The commissioner shall determine the amount of tax due and payable upon any estate or part thereof, and shall certify the amount so due and payable to the state treasurer and to the persons by whom the tax is payable; but in the determination of the amount of any tax under this chapter the commissioner shall not be required to consider any payments on account of debts or expenses of administration which have not been allowed by the probate court having jurisdiction of said estate. Payment of the amount so certified shall be a discharge of the tax. An executor, administrator, trustee, grantee, donee or survivor aggrieved by any determination of the commissioner may, within one year after the payment of any such tax, apply by a petition in equity to the probate court having jurisdiction of the estate of the decedent for the abatement of the tax or any part thereof, and if the court adjudges that the tax or any part thereof was wrongly exacted it shall order an abatement of such part thereof as was assessed without authority of law. Upon a final decision ordering an abatement of any part of such a tax, the treasurer shall pay the amount adjudged to have been illegally exacted, with interest, without any further act or resolve making appropriation therefor.

This statute originated in 1907, and prior to its enactment there was no provision for an authoritative statement by a representative of the commonwealth of the amount of tax claimed to

however, show in abatement proceedings that the value of the estate was reduced by the payment of debts. Attorney General v. Laycock, 221 Mass. 146 (1915).

'Whitney v. Tax Commissioner, 234 Mass. 188 (1919). In this case the court expressly left open the question of the necessary scope of an application for reappraisal by a devisee or legatee who is interested only in some particular property less than the entire estate.

[G. L. c. 65, § 27 be due equivalent in any way to the assessment of a local tax by the assessors. The statute automatically assessed the tax, and an executor or administrator who was in doubt as to the liability of a portion of the estate to the tax, but was willing with the assent of the legatees to pay all that the commonwealth claimed, had no means of securing a binding statement from the commonwealth without applying for instructions from the probate court. The statute quoted above remedies this situation to a certain extent; but nevertheless an estate that is liable to the tax may be made to pay it at any time that the commissioner certifies the tax is due and no such means of escape by lapse of time is afforded as is the case in the assessment of local taxes, which cannot be imposed after a certain day in the year for which they are assessed.

The second portion of the section also tends to bring the inheritance tax more in harmony with the general tax system of the commonwealth by giving the representative of the estate of a deceased person or the grantee of property under a gift inter vivos subject to the tax or a joint owner who takes by survivorship, who is aggrieved by a determination of the commissioner in regard to the amount of the tax, an opportunity to apply for abatement. As the law stands now a person who is aggrieved by the valuation for the purpose of the tax of property which is to pass to him may apply for a re-valuation by appraisers, with appeal on matters of law; and if he is aggrieved in any other way as by the subjection of property to the tax which he claims is exempt, the representative of the estate may apply for an abatement to the probate court.

A distinction is thus to be noted between section twenty-five and section twenty-seven. A legatee or devisee or a distributee in case of an intestate estate may apply for a reappraisal under section twenty-five as a "party interested in the succession." This right is essential to a reasonable protection of the rights of such parties because the determination of the commissioner is final upon valuation unless application for re-appraisal is made, and if such parties had no right to be heard upon the reappraisal they would be deprived of their property without a hearing. Upon abatement for any cause other than overvaluation there is no provision for a petition by the persons who are to receive the estate of the decedent and who thus ultimately

G. L. c. 65, §§ 27, 28] pay the tax, but the certification of the commissioner is not conclusive, so, if the question is not judicially determined by proceedings in the probate court, the legatees and distributees retain their common law right of suing the executor or administrator for their legacies or distributive shares without deduction, thus raising the question of the legality of the tax.

The right to apply for a re-appraisal under section twentyfive must also be carefully distinguished from the right to apply for an abatement under section twenty-seven. Re-appraisal is the only remedy for over-valuation of the property the passing of which is subject to the tax, and a petition for abatement will not lie merely to correct an error in valuation.1 Petition for abatement is the remedy in case of an assessment illegal in whole or in part.2 Failure on the part of the commissioner to allow a proper deduction for debts of the estate is an illegality which may be made the ground of a petition for abatement.3

If no appeal is taken from the valuation of the commissioner, he determines or computes the amount of the tax and certifies the tax to the treasurer and receiver general for collection. But he must also notify the person by whom the tax is to be paid, and the tax is not payable until such notice is given. As the legislature has not prescribed the kind of notice, it may be personal or by mail. If the taxpayer lives in a city, the notice should if possible be directed to the street and number of his residence. A notice to his attorney is not sufficient.*

Examination on Oath of Persons Having Information

SECTION 28. For the purpose of assessing taxes imposed by this chapter, the commissioner may summon and examine on oath any person supposed to know or have means of knowing any material fact touching the subject of such assessment. The said examination may be reduced to writing, and false swearing therein shall be deemed perjury and be punishable as such. A justice of the superior court, upon application of the commissioner, may compel the attendance of

'Attorney-General v. Skehill, 217 Mass. 364 (1914).

2 Attorney-General v. Roche, 219 Mass. 601 (1914); Attorney-General v. Laycock, 221 Mass. 146 (1915); Whitney v. Tax Commissioner, 234 Mass. .188, 191 (1919). See also G. L. c. 58, §27, supra, page 181, as to petitioning the commissioner for abatement.

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[G. L. c. 65, §§ 28-30 such witnesses and the giving of such testimony before the commissioner in the same manner and to the same extent as before said court.

The foregoing section was first enacted in 1914. It is essential to an enforcement of the tax upon gifts inter vivos intended to take effect in possession or enjoyment after the death of the donor, or made in contemplation of death, and upon the acquisition of property by survivorship, since the executor or administrator in his official capacity would have no knowledge of such transactions and might well have no actual knowledge of them.

Although the commissioner is authorized to summon witnesses, no penalty is imposed for disregard of the summons, and the commissioner can enforce attendance only by proceeding through the court.

Dooming on Refusal of Information

SECTION 29. Whenever an executor, administrator, trustee, or any person liable to taxation under this chapter, refuses or neglects to furnish to the commissioner any information which in the opinion of the commissioner is necessary to the proper computation of taxes payable by such executor, administrator, trustee or person, after having been requested so to do, the commissioner shall certify such taxes at the highest rate at which they could in any event be computed.

Jurisdiction of the Probate Court

SECTION 30. The probate court having jurisdiction of the settlement of the estate of the decedent shall, subject to appeal as in other cases, hear and determine all questions relative to the tax imposed by this chapter, or by the corresponding provisions of earlier laws, and the state treasurer shall represent the commonwealth in any such proceedings. If the court finds that any tax remains due, it shall order the executor, administrator or trustee to pay the same, with interest and costs, and execution shall be awarded against the goods and estate of the deceased in the hands of the executor, administrator or trustee, or, if it appears that there are no such goods or estate in his hands, against the goods and estate of the executor, administrator or trustee, as if for his own debt; but the administrators, executors, trustees and

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