TLC 57838

April 7, 1983

Middlesex, ss.



The City of Cambridge brought a petition to foreclose a tax lien for non-payment of taxes on February 14, 1980. Answers were filed on behalf of E. Christine Kris, Trustee of 48 Garden Street Trust, Adrian Van Sinderen, Jr., and Charlesbank Trust Company. However, apparently no further action was taken by Defendants Adrian Van Sinderen, Jr. and Charlesbank Trust Company and they were not represented at any of the court appearances. The case was assigned for hearing on August 20, 1980. Motions to continue were filed and allowed and an agreement was worked out between the City of Cambridge and Defendant Kris where she would make monthly payments on the tax title account.

A hearing was finally held on February 4, 1983 at which time Defendant Kris alleged that she did not owe the City any more money as interest had been waived. The City alleges that money is due. Four witnesses testified and five exhibits were introduced and are incorporated herein for the purpose of any appeal. Defendant Kris submitted a trial brief on February 4, 1983.

Based on all the evidence, the Court finds the following facts:

1. On June 30, 1977, the City of Cambridge took the land at 48 Garden Street, Cambridge, Massachusetts for non-payment of the 1975 tax assessed to E. M. Christine Kris, Trustee for 48 Garden Street Trust. The tax owed was $3,780.12 with interest in the amount of $766.08 due. (Exhibit 1)

2. The City of Cambridge brought a petition to foreclose a tax lien for non-payment of taxes on February 14, 1980.

3. Subsequent to the petition being brought, Defendant Kris made arrangements with the City of Cambridge to pay $300.00 a month, said payments to be applied to the tax title account.

4. Payments on the tax account were made by Defendant Kris regularly and receipts for the payments were issued by the City. One receipt, dated September 30, 1981, has a notation at the top by David B. O'Connor who is legal counsel for the City of Cambridge. The notation, which he testified was in his writing, states "Tax Title Account for 1975-1976 paid in full on 9/30/81 - interest since taking waived. D.B. O'Connor, J.D." (Exhibit 2) Mr. O'Connor testified that he does not remember writing this notation and that he never agreed to waive interest.

5. Defendant Kris further testified that she had various conversations between 1976 and 1980 with Mr. George O'Brien, a financial officer for the City of Cambridge, concerning interest and penalties and was told by Mr. O'Brien that interest and penalties had been waived. Mr. O'Brien testified that he was not of the opinion that these charges were waived and does not remember waiving interest and penalties.

Although it appears from the testimony and exhibit 2 that Mr. O'Connor agreed to waive interest, the agreement is without merit as Mr. O'Connor had no authority to waive the interest due on Defendant Kris' tax title account.

Massachusetts General Laws c. 60, §62 states in part:

Any person having an interest in land taken or sold for non-payment of taxes .... may redeem the same by paying or tendering to the treasurer the amount of the tax title account of the land being redeemed, and interest at sixteen per cent upon the original sum for which the land was taken or sold ...or may redeem the same by paying or tendering to said treasurer installments on account of the tax title account .... together with the full amount of interest, as aforesaid, to the date of payment of the amount of the tax title account,... and all charges lawfully added as aforesaid until the full amount of the tax title account, with interest as aforesaid and all such charges, is paid. (Emphasis added).

Under this statute the Treasurer is bound to collect any interest due. A person is not entitled to redeem land from a taking by the town unless he or she pays such subsequent taxes as have been duly certified by the collector to the treasurer, together with costs and interest. Boston v. Cable, 306 Mass. 124 (1940).

Chapter 60, §62 must be read together with Chapter 58, §8 which states in part:

If, at any time after any tax, assessment, rate or other charge has been committed to a collector such tax, assessment, rate or charge, or any interet thereon or costs relative thereto, remains unpaid and the commissioner is of the opinion that such tax, assessment, rate, charge, costs or interest should be abated, he may, in writing, authorize the assessors or the board or officer assessing such tax, assessment, rate, or charge, to abate any part or the whole of such tax, assessment, rate, charge, costs or interest, whether or not the same is secured by a tax title held by the town. The assessors or the board or officer aforesaid may thereupon make the abatement authorized and enter the same in their or his record of abatements, making reference in said record to such authorization as the cause or reason for the abatement.

This statute makes it clear that the only way interest, mandated under c. 60, §62, can be eliminated is through the method provided for in Chapter 58, § 8. This has clearly not been done in the instant case. The commissioner [Note 1] never authorized the assessors, in writing, to abate the interest Defendant Kris owed the City. Thus, the City of Cambridge had no power to abate the interest due hereon. As the City lacked power to abate interest, any statements made by David O'Connor or any other city official are not binding on the City of Cambridge and thus unless Defendant Kris pays the City the interest due [Note 2] on the tax title account within 60 days the petition to foreclose the tax lien will be allowed.

Defendant Kris has submitted a document entitled "Proposd Findings of Fact and Proposed Conclusions of Law Offered By Defendant E. Christine Kris" which contains four requests for findings of facts and five requests for rulings of law. Proposed Finding of Fact number 1 is denied; number 2 is allowed and numbers 3 and 4 are denied for assuming facts not in evidence. Conclusions of Law number 6 is allowed; numbers 5, 7, 8 and 9 are denied.

Judgment Accordingly.


[Note 1] Chapter 58, §8 states that the commissioner, for purposes of Chapter 58, is the Commissioner of Revenue.

[Note 2] The Court is not making a specific finding as to the amount of interest as no specific evidence was offered on this point.