ROBERT GREENFIELD, executor, vs. COMMISSIONER OF REVENUE.

GRANT, J. The plaintiff's testator was, at the time of his death in 1973, the owner of a substantial block of the common stock of a publicly held corporation. On April 5, 1977, the Commissioner of Corporations and Taxation, acting under the provisions of G. L. c. 65, Section 25 (as amended through St. 1971, c. 555, Section 58), valued the stock at $3,507,823 for purposes of the inheritance tax. [Note 1] On June 20, 1977, the State Tax Commission (Commission), apparently

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acting under the provisions of G. L. c. 65, Section 26 (as appearing in St. 1961, c. 469, Section 3), reduced the valuation to $3,472,351.30.

The plaintiff did not appeal to the Appellate Tax Board, as permitted by Section 26. Instead, on August 3, 1979, he filed in the Probate Court in which the estate was being settled a complaint against the Commissioner of Revenue (Commissioner) [Note 2] which was entitled "Complaint for the Reduction in the Valuation of Stock," which purported to invoke the court's jurisdiction under G. L. c. 65, Sections 27 (as appearing in St. 1971, c. 555, Section 59) and 30, and which sought a reduction in the valuation which had been determined by the Commission some two years earlier. The Commissioner moved to dismiss for lack of jurisdiction over the subject matter of the action (Mass.R.Civ.P. 12[b][1], 365 Mass. 755 [1974]), essentially on the ground that the plaintiff had failed to appeal to the Appellate Tax Board under Section 26 for a new appraisal of the stock. The plaintiff countered with an "Amended Complaint for the Abatement of Inheritance Taxes Wrongfully Assessed Without the Authority of Law" which also relied on the provisions of Sections 27 and 30 and sought the same ultimate objective. The Commissioner fired back with a further motion to dismiss, for the same reasons as before.

A judge bucked the jurisdictional question as well as the merits to a master, who persuaded himself that the court had jurisdiction to make an independent determination of value which would bind the Commissioner for inheritance tax purposes and suggested, not too subtly, that the case be settled. The Commissioner stuck to her guns, and the case was tried to the master, who valued the stock at $2,430,645.90. A second judge overruled the Commissioner on the jurisdictional point, adopted the master's report and valuation, and entered judgment accordingly. The Commissioner appealed.

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We think the master, counsel and the second judge may have oversimplified some of the language appearing in G. L. c. 65, Sections 27 and 30. The cases decided under or with reference to Sections 25 through 27 and 30 of that chapter, and their respective predecessors, [Note 3] have uniformly held or considered that what are now Sections 25 and 26 are the only sections of that chapter concerned with the valuation of assets which are subject to the inheritance tax, that Section 27 is confined to the abatement of illegally exacted taxes which have been paid, and that Section 30 constitutes nothing more than a grant of jurisdiction to hear and determine questions of law (as on petitions for instructions) as to whether particular interests are subject to liability for payment of the tax. [Note 4] That questions

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of valuation under Sections 25 and 26 have always been regarded as separate and distinct from questions of liability under Sections 27 and 30 is succinctly demonstrated by the following language appearing in New England Trust Co. v. Commissioner of Corps. & Taxn., 315 Mass. 639 (1944), which was a case brought under Section 30: "This is not an appeal from a determination of value. See G. L. (Ter. Ed.) c. 65, Section 25. Nor is it a petition for abatement under Section 27. It is an independent proceeding brought under Section 30 by a trustee to ascertain whether the transfer to it in trust is taxable. It is settled that such a proceeding can be maintained under Section 30. . . It is in the nature of a petition by a fiduciary for instructions. Similar cases have been designated as petitions for instructions." 315 Mass. at 641-642. [Note 5]

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We conclude, in accordance with the decided cases, that neither Section 27 nor Section 30 afforded any basis for the court's independent determination of value and turn our attention to Sections 25 and 26. A portion of the early history of what now appears in those sections is referred to or explicated in some of the cases already cited in n.4 hereof. [Note 6] We see no need to dwell on the early history. It is enough if the reader understands (1) that ever since the enactment of St. 1930, c. 416, the only statutory path from (A) a determination of value made by the taxing authorities for inheritance tax purposes to (B) a Probate Court has wound its way through either the old Board of Tax Appeals or (since 1937) the present Appellate Tax Board [Note 7] and (2) that ever since 1930 (with the exception of the period from July 1, 1955, through July 1, 1968) the provisions of G. L. c. 58A, Section 13, have been explicit that "[t]he decision of the board shall be final as to findings of fact." [Note 8] It is not surprising, therefore, that forty years ago the Supreme Judicial Court said, in proceedings brought under Section 30, that "[the] sole remedy in the first instance, if aggrieved by the determination of value by the [Commissioner of Corporations and Taxation], was by appeal to the Appellate Tax Board under" what is now Section 26. Anderson v. Commissioner of Corps. & Taxn., 312 Mass. 40, 45-46 (1942).

That remedy was not pursued in the present case. As even the master ultimately concluded, the question of the value of the stock was one of fact to be determined on all

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the evidence. Commissioner of Corps. & Taxn. v. Worcester County Trust Co., 305 Mass. 460, 462-463 (1940). Compare New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 465-468, 472-473 (1981). There was and is no question that the passing of the stock is subject to the inheritance tax. It has not been argued, or even suggested, that this is the type of case in which the established administrative machinery could or should be bypassed in favor of declaratory relief under G. L. c. 231A. [Note 9] See Sydney v. Commissioner of Corps. & Taxn., 371 Mass. 289, 293-295 (1976); S.J. Groves & Sons v. State Tax Commn., 372 Mass. 140, 142-143 (1977). We conclude that the Probate Court lacked jurisdiction to make an independent determination of the value of the stock that would be binding on the Commissioner.

Accordingly, the judgment is reversed, and a new judgment is to be entered dismissing the action for lack of jurisdiction over its subject matter.

So ordered.