TLC 85740

March 12, 1991

Suffolk, ss.



The City of Boston has filed a petition to foreclose the taxpayer's right of redemption of the real estate taxes assessed for fiscal 1986 on the Condominium Unit 418 in the building now known as and numbered 416 Commonwealth Avenue in the Back Bay District of said City. The respondents Eileen B. Edelstein and Ralph J. Edelstein claim that all taxes have been paid in full, and nothing is due the City on their condominium. Unlike the usual claim of payment the respondents have shown delivery of checks in full payment to the City and misapplication by the treasurer's office of one of the checks.

A hearing was held at the Land Court on March 6, 1991 at which the petitioner and respondents were represented by counsel, who presented their respective arguments. On all the evidence I find and rule as follows:

1. An estimated tax bill for fiscal 1986 was issued to Susan A. Edelstein et al by the petitioner for Unit 418 at 416 Commonwealth Avenue to be paid on December 6, 1985 but without setting forth any amount due the City.

2. The tax bill was paid by Check No. 908 drawn on BayBank/Middlesex by Eileen Edelstein dated November 30, 1985 payable to the order of the City of Boston in the amount of $490.30. The check was received by the City on December 3 and deposited on December 8, 1985.

3. The check bears the legend that it is for "Taxes for #418 Somerset Susan Edelstein" and was negotiated by the petitioner's Collector-Treasurer.

4. The check bears a handwritten phrase in different writing from that of the maker "9 cks".

5. The City subsequently issued a complete tax bill for fiscal 1986, Bill No. 23510, covering 416 Commonwealth Avenue, Unit 418 in the amount of $1,011.48 which does not acknowledge the December 1985 payment. [Note 1]

6. The respondents paid the balance they claim to be due by Check No. 1109 dated July 12, 1986 drawn on BayBank/Middlesex in the amount of $505.74. If both payments are applied to the Edelstein unit, they are $15.44 less than the total amount of Bill No. 23510, but I assume that discrepancy has been rectified or will be apart from this proceeding.

7. Apparently the estimated tax bill was paid by the developer or by a mortgagee since there is a reference to nine checks on the Edelstein check. The latter, however, clearly gave the unit number for which payment was being made, and the funds were applied by the City to the wrong bill through neglect or carelessness.

It is regrettable that the City cannot now re-assess the taxes in question; since this cannot be done, the owner of some condominium unit is benefitting from the City's mistake in being relieved paying his taxes. The City wants to put the burden on the respondents to trace the misapplication and to recover from the other unit owner to whose benefit the Edelstein's moneys were applied. This would be inequitable and probably impossible to accomplish. The mistake is attributable to an employee of the City, and the respondents should not suffer. The records of the City are to be reformed to show the December 1985 payment applied to Unit 418, the taking is discharged and this petition dismissed.

Judgment accordingly.


[Note 1] The bill states it is the second half tax, but the City does not argue that the bill for the entire year was twice this amount, but merely that the tax for the first half of the year was estimated and no payment of it had been made.