367 Mass. 908

May 8, 1975

This case was heard by us together with the case of McIntyre v. Associates Financial Services Co. of Mass. Inc. ante, 708 (1975), since both cases arose out of the same factual background and both share common issues. The plaintiff (Associates) in the instant case was the attaching creditor named as a defendant in the McIntyre case, supra. A judge of the Superior Court included, in a final decree entered in the McIntyre case, an order that Associates should remove the real estate attachment from the records of the registry of deeds within 120 days of the decree. Subsequently, as a condition for allowing an extension of the 120 day time limit pending appeal of the McIntyre case, the judge ordered Associates to post a $20,000 bond. Associates sought relief against these orders by a motion under Mass. R. App. P. 6 (a), 365 Mass. 848 (1974), filed in the county court, which was thereafter heard, and subsequently denied, by a single justice of this court. In light of our holdings in the McIntyre case, Associates is now entitled to the vacating of the orders for removal of the attachment and the posting of the bond. Since these matters presumably will be disposed of by provisions in the judgment to be entered pursuant to our order in the McIntyre case, it is now appropriate for us to dismiss this appeal.

So ordered.


367 Mass. 908

May 19, 1975

The taxpayers appeal from a decision of the Appellate Tax Board (board) upholding the State Tax Commission's (commission) denial of an abatement of sales taxes assessed

Page 909

against the individual taxpayer. The taxpayers claim that no sales tax was payable on the retail sale of telephone equipment sold during the period from April, 1966, to June, 1968, inclusive. They argue that the sales were exempt from any sales tax first under the provisions of St. 1966, c. 14, Section 1, subsection 6 (i), and subsequently under G. L. c. 64H, Section 6 (i), as appearing in St. 1967, c. 757, Section 1. Each statute exempted "[t]he sales, furnishings or service of gas, water, electricity, telephone and telegraph." See St. 1971, c. 1088, amending G. L. c. 64H, Section 6 (i). The taxpayers did not request any findings and report from the board. See G. L. c. 58A, Section 13, as amended. The commission did not admit any facts in its answer. Thus there are no facts before us on the record on which to determine whether the board committed any error of law. However, the Commissioner's brief concedes that the individual taxpayer sold telephone equipment of some sort. The relevant statutes exempt telephone service and the sale or furnishing of telephone service but not the sale of telephone equipment. Therefore, sales taxes appropriately were due for the sale of telephone equipment. There is no basis on this record to support the taxpayers' claim that they were denied equal protection of the laws. The decision of the Appellate Tax Board is affirmed.

So ordered.


[Note 1] The individual taxpayer apparently operated as a sole proprietor during the time of the sales in issue here. The other taxpayer is a corporation subsequently formed by the individual taxpayer.