Probably an abatement cannot be asked for of the tax on land or on buildings separately, where all constitute one parcel of real estate, 2000 and it cannot be had because the assessors have valued different lots together, instead of by items, as directed by the statute. 2001

Where a tax is assessed upon a corporation by a valuation of the separate parcels of real estate belonging to it, and the corporation proves that any one or more is overvalued, it is entitled to an abatement; and the inquiry whether other lots have been valued at too low a rate is not open to the town or city. It cannot ask that the valuation on other property of the complainant shall be raised, in order to make a set-off against that part of the assessment which is shown to be excessive. Neither the assessors nor the county commissioners have any jurisdiction or authority to increase the valuation or assessment made by the assessors on any parcel of property."

d. Taxation in case of abatement,

2002

"Whenever an abatement is finally made to any corporation organized under the law of this commonwealth and liable to a corporate franchise tax upon any tax assessed by the assessors of any city or town, upon or in respect of real estate, machinery or underground conduits, wires and pipes, the assessors, commissioners or court granting such abatement shall forthwith notify the tax commissioner of the commonwealth thereof, and shall state in such notice what sum was determined by such assessors, commissioners or court to have been the full and fair cash value of such real estate, machinery or underground conduits, wires and pipes on the first day of May on which the tax so abated was originally assessed." 2003

2000 Tremont & Suffolk Mills v. Lowell, 163 Mass. 283, 288, 39 N. E. Rep. 1028.

2001 Lowell v. County Com'rs, 152 Mass. 372, 385, 25 N. E. Rep. 469. Cf. Pub. St., c. 11, §§ 41, 53, 69, 71. Cf. Lincoln v. Worcester, 8 Cush. 55; Tobey v. Wareham, 2 Allen, 594; Noyes v. Hale, 137 Mass. 266; Sprague v. Bailey, 19 Pick. 436; Torrey v. Millbury, 21 Pick. 64; Westhampton v. Searle, 127 Mass. 502; Bemis v. Caldwell, 143 Mass. 299, 9 N. E. Rep. 623; Boston Water Power Co. v. Boston, 9 Met. 199, 204;: Hamilton Manuf. Co. v. Lowell, 185 Mass. 114, 117.

2002 Lowell v. County Com'rs, 3 Allen, 546; Lowell v. County Com'rs, 146 Mass. 403, 411, 16 N. E. Rep. 8; Lowell v. County Com'rs, 152 Mass. 372, 385. 25 N. E. Rep. 469; Tremont & Suffolk Mills v. Lowell, 163 Mass. 283, 288, 39 N. E. Rep. 1028.

2003 St. 1904, c. 442, § 1, in effect June 8, 1904.

"When the tax commissioner has received notice of an abatement of the taxes of any corporation as provided in section one of this act, he shall assess upon such corporation an additional tax upon the corporate franchise value of such corporation, in such amount as shall make the total franchise tax equal that which would have been assessed by said commissioner had the valuation as established by said abatement been adopted by him when making his original assessment upon the corporate franchise value of such corporation, which said additional tax shall be paid and collected as an addition to the franchise tax next to be assessed and laid upon said corporation after such abatement, and such additional tax, when collected, shall be distributed as if it were part of said original tax.” 2004

e. Appeal from valuation of assessors.

The present act provides for an appeal from the valuation of the real estate or machinery by the assessors either to the county commissioners or to the superior court. 2005

Appeal to county commissioners.

"A person aggrieved by the refusal of assessors to abate a tax may, within thirty days after receiving the notice provided in the preceding section, appeal therefrom by filing a complaint with the clerk of the county commissioners, or of any board exercising the powers of such commissioners, for the county in which the property taxed is situated, and if upon a hearing the board finds that the property has been overrated, it shall make a reasonable abatement and an order as to costs. [If the list required to be brought in to the assessors was not brought in within the time specified in the notice required by section forty-one, the tax shall not be abated unless the appellate board finds that there was good cause for the delay, or unless the assessors have so found as provided in section seventy-four. No costs shall be allowed to a complainant who has failed to file a list as required by law]" 2006

2004 St. 1904, c. 442, § 2.

2005 Historical. Prior to April 27, 1890, the appeal was only to the county commissioners. St. 1890, c. 127. Cf. Pub. St., c. 11, § 71; c. 13, § 41. Under the original act the valuation of the tax commissioner was not subject to revision by any tribunal. Com. v. Cary Improvement Co., 98 Mass. 19.

2006 R. L., c. 12, § 77; St. 1882, c. 218; Pub. St., c. 11, §§ 71, 72; Gen. St., c. 11, §§ 45, 46; St. 1857, c. 306, § 3; St. 1853, c. 319, § 3; Rev. St., c. 7, §§ 39, 40; St. 1785, c. 50, §§ 9, 10. Lincoln v. Worcester, 8 Cush. 55; Lowell v. County Com'rs, 6 Allen, 131; Stone v. Charlestown, 114 Mass. 224; Lowell v. County Com'rs, 152 Mass. 372, 25 N. E. Rep. 469; Hussey v. Crawford, 152 Mass. 596, 26 N. E. Rep. 424; Nat. Bank of Commerce v. New Bedford, 155 Mass. 313, 29 N. E. Rep. 532; Boott Cotton Mills v. Lowell, 159 Mass. 383, 34 N. E. Rep. 367.

A corporation is entitled to appeal from the valuation of the assessors to the board of county commissioners, although it has not filed a sworn statement of its property, as provided by Rev. Laws, c. 12, §§ 41, 74, and has no good excuse for failing to do So. In this respect it differs from an individual.2008

2007

Where an appeal has been made to the county commissioners for an abatement of taxes, the sole question before them is as to whether the property has been valued at its fair cash value, and it is immaterial whether it has been valued by the assessors at more or less, relatively, than similar property of other per

Where assessors were applied to for an abatement October 19, and on November 16 refused to grant one, and notified the corporation December 8, it was held that a complaint filed with the clerk of the county commissioners December 17 was seasonable, the corporation being entitled to one month from actual notice of the decision of the assessors.' 2010

Appeal to the court.

The provision for appeals to the court is as follows:

"A person aggrieved as aforesaid may, instead of pursuing the remedy provided in the preceding section, but subject to the same conditions, appeal to the Superior Court for the county in which the property taxed is situated by entering a complaint in said court on the first return day after the expiration of thirty days from the giving of the notice required by section seventy-six, which shall be heard and determined as other court causes by the court sitting without a jury." 2011

See also Com. v. Hamilton Mfg. Co., 12 Allen, 298; Firemen's Fire Ins. Co. v. Com., 137 Mass. 80.

2007 Lowell v. County Com'rs, 146 Mass. 403, 409, 410, 16 N. E. Rep. 8; Page v. Melrose, 186 Mass. 363.

2008 Cf. Harrington v. Glidden, 179 Mass. 486, 491, 61 N. E. Rep. 54, and R. L., c. 12, § 74; Pub. St., c. 11, §§ 69-72; St. 1890, c. 127.

2009 Lowell v. County Com'rs, 152 Mass. 372, 25 N. E. Rep. 469, decided under Pub. St., c. 11, §§ 41, 45, 69, 71, and St. 1885, c. 355. Cf. Lowell v. County Com'rs, 6 Allen, 131.

2010 Lowell v. County Com'rs, 146 Mass. 403, 16 N. E. Rep. 8. Cf. R. L., c. 12, §§ 76, 77.

2011 R. L., c. 12, § 78; St. 1890, c. 127, §§ 1, 2, 4. Hussey v. Crawford, 152 Mass. 594, 26 N. E. Rep. 424; Nat. Bank of Commerce v. New Bedford, 155 Mass. 313, 29 N. E. Rep. 532; Tremont & Suffolk Mills v. Lowell,

§ 74. Taxation of corporate existence.

"Every domestic corporation which is subject to the provisions of this act shall in each year pay to the treasurer and receivergeneral a tax upon the value of its corporate franchise, after making the deductions provided for in section seventy-two, at a rate equal to the average of the annual rates for the three years preceding that in which the 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 cities and towns under the provisions of section ninety. three of chapter twelve of the Revised Laws, as amended by this act, after deducting therefrom the amount of tax assessed upon polls for the preceding year, as certified to the secretary, upon the aggregate valuation of all cities and towns for the preceding year as returned under sections sixty and sixty-one of said chapter of the Revised Laws. But the said tax upon the value of the corporate franchise after making the deductions provided for in section seventy-two, shall not exceed a tax levied at the rate aforesaid upon an amount, less said deductions, twenty per cent in excess of the value, as found by the tax commissioner, of the real estate, machinery and merchandise, and of securities which if owned by a natural person resident in this commonwealth would be liable to taxation; and the total amount of tax to be paid by such corporation in any year upon its property locally taxed in this commonwealth and upon the value of its corporate franchise shall amount to not less than one tenth of one per cent of the market value of its capital stock at the time of said assessment as found by the tax commissioner. If the return from any city or town is not received prior to the twentieth day of August, the amount raised by taxation in said city or town for the preceding year, as certified to the secretary of the commonwealth, may be adopted for the purpose of this determination." 2012

163 Mass. 283, 39 N. E. Rep. 1028; Nat. Bank of Commerce v. New Bedford, 175 Mass. 257, 56 N. E. Rep. 288; Page v. Melrose, 186 Mass. 364.

2012 St. 1906, c. 271, § 12; St. 1904, c. 261; St. 1903, c. 437, § 74; R. L., c. 14, § 40; St. 1898, c. 417; St. 1888, c. 413, § 24; St. 1886, c. 1270; St. 1885, c. 238, § 1; Pub. St., c. 13, § 40; St. 1880, c. 117, § 2; St. 1865, c. 283, § 5; St. 1864, c. 208, § 5.

Citations.

- St. 1904, c. 261: Mexican Central R. Co. v. Commonwealth, 192 Mass. 130, 131.

a. Constitutionality of franchise tax.

The Constitution of Massachusetts 2013 gives to the legislature the power to impose and levy reasonable duties and

excises upon any

being within the same."

commodities whatsoever

It was early decided that the franchise or privilege of being a corporation was a "commodity " within the meaning of this section of the Constitution, and that a tax on the capital stock

St. 1903, c. 437, § 74: Mexican Central R. Co. v. Commonwealth, 192 Mass. 130, 131; N. E., etc., S. S. Co. v. Commonwealth, 81 N. E. 286. St. 1888, c. 413, § 24: Nash v. Brown, 165 Mass. 384, 43 N. E. Rep. 180. Pub. St., c. 13, § 40: Greenfield v. County Com'rs, 135 Mass. 569; Firemen's Ins. Co. v. Commonwealth, 137 Mass. 81; Pratt v. Street Com'rs of Boston, 139 Mass. 564, 2 N. E. Rep. 675; Lowell v. County Com'rs, 146 Mass. 408, 16 N. E. Rep. 8; Lowell v. County Com'rs, 152 Mass. 374, 25 N. E. Rep. 469; Boston & Albany R. R. v. Commonwealth, 157 Mass. 70, 31 N. E. Rep. 696; Troy Cotton, etc., Mfy. v. Fall River, 167 Mass. 522, 46 N. E. Rep. 99; Tremont & Suffolk Mills v. Lowell, 178 Mass. 471, 59 N. E. Rep. 1007; Atty.-Gen. v. Mass., etc., Gas Co., 179 Mass. 20, 60 N. E. Rep. 389; Worcester v. Board of Appeal, 184 Mass. 465; 1 Op. Atty. Gen. 571.

St. 1865, c. 283, § 5: Firemen's Ins. Co. v. Commonwealth, 137 Mass 83; Pratt v. Street Com'rs of Boston, 139 Mass. 561, 2 N. E. Rep. 675. St. 1864, c. 208, § 5: Com. v. Lowell Gas-Light Co., 12 Allen, 76; Com. v. Hamilton Mfg. Co., 12 Allen, 300; Com. v. Cary Improvement Co., 98 Mass. 19; Com. v. Berkshire Life Ins. Co., 98 Mass. 26; Dudley v. Jamaica Pond Aqueduct Corp., 100 Mass. 184; Traders & Mechanics' Ins. Co. v. Brown, 142 Mass. 413, 8 N. E. Rep. 134.

See also, generally, Manufacturers' Ins. Co. v. Loud, 99 Mass. 146; Atty.Gen. v. Bay State Mining Co., 99 Mass. 151; Hoadley v. County Commissioners, 105 Mass. 527; Hamilton Co. v. Massachusetts, 6 Wall. 632; Plummer v. Coler, 178 U. S. 115, 120.

Historical. This section marks an important departure from the system of franchise, tax under the Revised Laws.

Old Law. No maximum and no minimum tax.

New Law. - Maximum, not to exceed tax on an amount less the deductions equal to 120 per cent. of the real estate, machinery, merchandise and non-taxable securities of the corporation. Minimum, not less than onetenth of one per cent. of market value of capital stock at, the time of the assessment, less the amount of the local tax.

Prior to April 11, 1906, the rate was fixed by the amount, to be raised in the same year, and not by the average, of the rate for the preceding three years.

2013 Chapter I, Section I, Article IV.