G. L. c. 65, § 30] grantees mentioned in this chapter shall be personally liable only for such taxes as shall be payable while they continue in the said offices or have title as such grantees respectively. The first sentence of this section is substantially the statute as it appeared in 1891 and in the Revised Laws. An amendment in 1903 related to the discharge of the lien and to securing the payment of a tax due on account of the passing of real estate, and its provisions have been superseded. The second sentence originated in 1907 and provides a more definite method for carrying out the orders of the court. It has been held that the probate court has jurisdiction of a petition brought by an executor of a foreign will proved in this commonwealth for instructions upon the question whether he is liable to pay a tax upon the property, real and personal, of the testator found in this commonwealth,' and of a petition filed by the treasurer to determine whether a tax is payable and the amount thereof." It was held in 1895 that the jurisdiction of the probate court is not exclusive, and that a legatee may sue the executor for his legacy at common law and thus raise the question whether any tax should be deducted. As there is no method provided for a legatee or distributee to contest the tax (except for excessive valuation) in any other way than by an action against the executor or administrator, if the executor or administrator pays the tax without asking the probate court for instructions or applying for an abatement, and there is no requirement that the certification of the commissioner be final and conclusive if it is not questioned in the manner provided by statute, it would seem that the decision referred to is still good law, although an executor or administrator would doubtless not often put himself in a position which would subject him to liability in such an action. Although the statute provides that the state treasurer shall represent the commonwealth in proceedings under this section, it is not essential to the jurisdicion of the court that he be made a party, and the failure to make him a party when he has not asked to be admitted as such is not ground for reversing a judgment rendered under this section.* 'Callahan v. Woodbridge, 171 Mass. 595 (1898). 2 Bradford v. Storey, 189 Mass. 104 (1905). [G. L. c. 65, §§ 31, 32 Enforcement of Lien on Real Estate SECTION 31. Upon petition of the state treasurer the probate court shall, after such notice to the owners of any real estate or separate parcel thereof as said court shall order, determine the amount of taxes imposed by this chapter and by corresponding provisions of earlier laws which have become payable, and of interest on said taxes, for which such real estate or separate parcel thereof is charged with a lien. After such determination said treasurer may collect said taxes and interest by sale in the manner provided by chapter sixty for the collection of taxes by sale by a collector of taxes, so far as applicable. From the first enactment of the inheritance tax law in 1891 it was open to the state treasurer to petition the probate court to determine whether a tax was payable, and, if payable, what the amount should be; but there was no provision authorizing the probate court to enforce payment of the amount determined to be due.1 There was also provision that the taxes should constitute a lien until paid, but no specific authority for enforcing the lien by foreclosure or sale. In 1910 however proceedings for enforcing the lien upon real estate in the same :nanner as liens for local taxes are enforced were authorized. 2 Proceedings for the Recovery of Unpaid Taxes SECTION 32. The treasurer shall commence proceedings for the recovery of any of the taxes imposed by this chapter or by corresponding provisions of earlier laws within six months after the same become payable; and also whenever the judge of a probate court certifies to him that the final account of an executor, administrator or trustee has been filed in such court, and that the settlement of the estate is delayed because of the non-payment of said tax. The probate court shall so certify upon the application of any heir, legatee or other person interested therein. Whenever the circumstances of a case require, the probate court may extend the time for payment of said tax, with or without interest. Ordinarily the collection of inheritance taxes takes care of itself. If the validity or amount of the tax is not in dispute, the executor or administrator sets aside funds sufficient to pay the 1 Bradford v. Storey, 189 Mass. 104 (1905). 2 See G. L. c. 65, §9, supra, page 633. G. L. c. 65, §§ 32, 33] tax before he distributes the estate; and, if any question about the tax has arisen, he applies to the probate court for instructions and acts in accordance with the decision of the court. If the payment of the tax is postponed under the statute, the commonwealth is protected by deposit or bond.1 The statute quoted above is in substance that originally enacted in 1891, except that it was then provided that the treasurer should "bring suit" and the wording appeared in the Revised Laws "commence an action." Just what form of "suit," "action" or "proceedings" was contemplated has never been determined by the supreme court, but the wording of the earlier statutes at least would seem to imply an action of contract in the superior court. The following section, however, first enacted in 1909, makes clear the forms of action to be employed, although such remedies are not necessarily exclusive. It has been held that the provision as to time is only directory, and that the treasurer is not limited to a period within six months after the tax has become payable,3 and further that the obligation to pay the tax can be terminated only by payment and that neither the general statute of limitations nor the special statute applicable to actions against executors and administrators can be invoked as a bar to a proceeding to recover an inheritance tax.* The concluding clause of the section quoted above authorizes the deferment of the payment of the tax when it cannot be ascertained who the ultimate beneficiaries will be and what relationship they will bear to the decedent, and no settlement has been made with the commissioner." 5 Remedies for Collection of Taxes SECTION 33. Taxes imposed by this chapter and by corresponding provisions of earlier laws may be recovered by the state treasurer in an action of contract brought in the name of the commonwealth, or by an information in equity brought in the supreme judicial court by the attorney general at the relation of the treasurer. In a proceeding under this section for the collection of taxes imposed by this chapter, 1 G. L. c. 65, §15, supra, page 642. 2 See decisions under G. L. c. 60, §35, supra, page 342. 'Howe v. Howe, 179 Mass. 546 (1901). Under G. L. c. 65, §14, supra, page 640. [G. L. c. 65, § 33 the determination by the commissioner under section twenty-seven of the amount of the tax shall be final as to such amount; but an executor, administrator, trustee, grantee, donee or survivor may show, in any proceeding brought against him under this section, any facts which would entitle him to an abatement under section twenty-seven, and a judgment or decree shall be entered for the amount of the tax so determined less the amount proved to have been assessed without authority of law, together with interest and costs. If upon an information brought hereunder the court shall find that any tax remains due, it shall order the executor, administrator, trustee, grantee, donee or survivor to pay the same, with interest and costs, and may award execution therefor in the manner and form provided in section thirty. The foregoing section was first enacted in 1909; whether it was enacted for the purpose of defining the proceedings which the treasurer was authorized by the preceding section to institute, or for providing additional remedies, is not entirely clear. In proceedings brought under this section it is not open to the defendant to contest the valuation by the commissioner of the property the passing of which is subject to the tax; the only remedy of a person aggrieved by an overvaluation is to apply for a re-appraisal under section twenty-five. The defendant may however set up as a defense that the tax was in whole or in part illegally assessed." 1 SUMMARY There are now four distinct methods provided for collecting inheritance taxes, namely: (1) Petition to the probate court by the commissioner to determine whether a tax is due and the amount thereof.3 (2) Action of contract in the name of the commonwealth.* (3) Information in equity brought in the supreme judicial court by the attorney general.5 Thus in such proceedings it is not even open to the defendant to show that the true value of the property was so small that no inheritance tax whatever was due. Attorney-General v. Skehill, 217 Mass. 364 (1914). 2 Thus it is competent for the defendant to show that by the payment of debts the assets of the estate were reduced to such a point that no tax was payable. Attorney General v. Laycock, 221 Mass. 146 (1915). G. L. c. 65, § 33] In all of the above execution issues against the goods of the decedent in the hands of the executor, administrator or trustee; but if there are no such goods the executor, administrator or trustee is personally responsible for taxes payable while he was in office. (4) Sale of real estate for non-payment of taxes assessed on account of the same." In addition to these direct methods, pressure may be indirectly applied in the following manner: (5) Enforcement of lien on personal property until it is sold or disposed of for value.' (6) Prohibition of allowance of final account unless tax on future estate is secured by deposit or bond. (7) Prohibition of delivery of property by executor or administrator to legatee or heir until he has collected the tax thereon.9 (8) Sale of land by executor or administrator if heirs or devisees refuse or neglect to pay the tax, or the personal property is insufficient.10 (9) Enforcement of tax on legacy charged upon real estate in the same manner as payment of the legacy could be enforced."1 (10) Liability of domestic corporation for the tax in action of contract if it transfers shares of non-resident decedent before the tax is paid.12 (11) Withholding of license to receive assets of non-resident decedent until tax has been paid.13 (12) Liability of person for tax in action of contract if he delivers assets of non-resident decedent before tax has been paid.1 (13) Application by commissioner for appointment of administrator if no will is offered for probate or application for administration made within four months.15 G. L. c. 65, §31, supra, page 656. G. L. c. 65, §9, supra, page 633. G. L. c. 65, §23, supra, page 648. G. L. c. 65, §17, supra, page 644. 10 G. L. c. 65, §21, supra, page 647. "G. L. c. 65, §18, supra, page 645. 12 G. L. c. 65, §10, supra, page 634. 13 G. L. c. §10, supra, page 634. 13 G. L. c. 65, §10, supra, page 634. 15 G. L. c. 193, §3, infra, page 747. |