Home RICHARD JOYCE SMITH, trustee, vs. STATE TAX COMMISSION.

362 Mass. 869

June 15, 1972

The trustees of a railroad debtor in reorganization under Section 77 of the Bankruptcy Act (11 U. S. C. Section 205 [1964]) conveyed the debtor's assets to a successor company pursuant to a reorganization plan approved by the Interstate Commerce Commission and an order of a United States District Court. The conveyance included numerous parcels of land and interests in land located in Massachusetts, and the excise tax on the deeds under G. L. c. 64D, Section 1, was paid. Deed stamps evidencing payment of the tax were affixed to a counterpart of the deed recorded in the Suffolk registry of deeds. The remaining trustee's claim for refund was denied by the State Tax Commission and by the Appellate Tax Board, and he appeals under G. L. c. 58A, Section 13. We affirm. The taxpayer was not entitled to an exemption on the ground that "the United States or any of its agencies" was a party to the deeds. G. L. c. 64D, Section 1. See Assessors of Wilmington v. Avco Corp. 357 Mass. 704 , 706; Missouri v. Gleick, 135 F. 2d 134, 136 (8th Cir.); Farmers' Loan & Trust Co. v. Council Bluffs Gas & Elec. Light Co. 90 Fed. 806, 807-808 (W. D. Iowa); Crawford v. New So. Farm & Home Co. 231 Fed. 999, 1000 (S. D. Fla.); Boise Title & Trust Co. v. Evans, 295 Fed. 223, 224 (S. D. Idaho). The trustees, as officers "conducting any business" under the authority of a United States court, were subject to State taxes under 28 U. S. C. Section 960 (1964). Thompson v. Louisiana, 98 F. 2d 108, 111-112 (8th Cir.). Borock v. City of New York, 268 F. 2d 412, 415-416 (2d Cir.). Southern Ry. v. United States, 306 F. 2d 119, 126 (5th Cir.). In re Penn Cent. Transp. Co. 325 F. Supp. 294, 298 (E. D. Pa.). Fifth St. Bldg. v. McColgan, 19 Cal. 2d 143, 146. That statute has been held applicable to liquidating trustees. In re Loehr, 98 F. Supp. 402, 403 (E. D. Wis.), and cases cited. See Nicholas v. United States, 384 U.S. 678, 694, n. 28; United States v. Sampsell, 266 F. 2d 631, 634-635 (9th Cir.), and cases cited; In re Statmaster Corp. 332 F. Supp. 1248, 1257-1258, 1261 (S. D. Fla.). If it is not, it has not been shown that the taxpayer here was acting as a liquidating trustee. See In re New York, N. H. & H. R.R. 281 F. Supp. 65, 67-69 (D. Conn.).

Decision affirmed.

Home WINIKER REALTY, INC. vs. ZONING BOARD OF APPEALS OF MILLIS.

362 Mass. 869

June 16, 1972

The plaintiff filed on or about April 23, 1968, with the Zoning Board of Appeals of Millis (the board) an application for a special permit to erect six multi-unit dwellings on a locus situated in residential district No. 1, with a small portion located in residential district No. 2. When it filed its application this was a permitted use in those districts under the zoning by-law. On June 24, 1968, the by-law was amended to prohibit such a use in those districts and the request for a special permit was denied on July 19, 1968. In denying the application the board did so on the ground of a possible health hazard. At the trial in the Superior Court the judge ruled that the plaintiff's request was controlled by the amended

Page 870

by-law. This ruling, and the final decree sustaining the decision of the board of appeals, were correct. See Doliner v. Planning Bd. of Millis, 343 Mass. 1 , 6-7.

Decree affirmed.