TLC 83293

December 12, 1991

Suffolk, ss.



The defendants purchased a condominium unit in the premises at 126-128 Fulton Street in Boston in the County of Suffolk on June 27, 1984. At that time and presently they are residents of Mount Sunapee, New Hampshire, and apparently a family member resided in the condominium.

From the defendants' purchase until the taxes for fiscal 1990 there has been a problem with payment of the real estate taxes assessed against the unit, perhaps because of the taxpayers' unfamiliarity with the assessment and due dates and perhaps because of their difficulty in obtaining a tax bill.

The City of Boston made a tax taking on June 24, 1985 for nonpayment of the taxes for fiscal 1985 and filed this action to foreclose the taxpayers' right of redemption on March 3, 1988.

A hearing was held on November 6, 1991 at which the defendants agreed that unpaid taxes were their responsibility but objected to payment of interest when their efforts to obtain a tax bill were fruitless.

On all the evidence I find and rule as follows:

1. The taxes for fiscal 1985 were assessed to the defendants' predecessor in title as the owners of record on January 1, 1984 but were payable in two installments on or before November 1, 1984 and May 1, 1985. The latter installent was paid by the defendants' check number 120 in the amount of $880.94, but there is no record of payment of the other installment of $880.93.

2. The defendants have furnished the Court with a check in the amount of $880.93, but from its date of November 22, 1985 and the present balance of the fiscal 1986 taxes, the City appears to have applied the check to the first one-half of the fiscal 1986 bill due about November 1, 1985.

3. In 1987 Joseph R. Frissora began his efforts by telephone and letter to obtain the fiscal 1987 tax bills and thereafter the bills for fiscal 1988 and 1989. He was unsuccessful during the period of calendar 1987 and 1988, but in 1989, after this action had been commenced, he began negotiations with the City of Boston relative to the payment of the bills and waiver of the interest.

4. During this period of time the defendants received a credit against the assessment as residents of the condominium unit even though they have never lived there and are not entitled to this consideration.

It is clear from the case law that liability to pay a tax bill is not conditional on the sending of a tax bill, Boston v. DeWors, 340 Mass. 402 (1960); and indeed the General Court has provided a mechanism in G.L. c. 60, ยง39 by which the taxpayer can be certain that the city has his correct address. Nonetheless this factual pattern is akin to West v. Board of Selectmen of Yarmouth, 345 Mass. 547 (1963) where the taxpayer here has made diligent efforts but was unable to obtain bills for fiscal 1987, [Note 1] 1988 and 1989. The defendants made persistent but unavailing efforts to obtain the tax bills, and it would be wrong to charge interest for these years, at least until the spring of 1989.

Accordingly a finding will be entered when the City provides the necessary computations based on the following principles:

a) Taxes for fiscal 1985, interest and charges are due as they appear on the computer print out: $2,357.94.

b) Taxes for the second half of fiscal 1986 from May 1, 1985 [Note 2] are due, but interest is to run only from the due date to March 1, 1987.

c) Taxes for fiscal 1987, fiscal 1988 and fiscal 1989 are to bear interest only from May 1, 1989 to date.

d) As an offset against the interest charges which I have determined the City may not collect the City may add to the tax title account the credit mistakenly given to the defendants as residents for the fiscal years 1987, 1988 and 1989.

Accordingly a finding will be entered covering payment of all unpaid taxes, interest where applicable as set forth herein and other charges and adding the residential allowance for the fiscal years 1987, 1988 and 1989.

Judgment accordingly.


[Note 1] It is true that the present account shows only a portion of the 1986 taxes unpaid, but I attribute this not to a tax bill but to the application of a check which may have been intended for fiscal 1985.

[Note 2] I do not have the actual dates of mailing the tax bills and thus the due date, but I have outlined herein the applicable principles.