JOSEPH J. CACCIATORE, trustee, vs. STATE TAX COMMISSION.

BRAUCHER, J. The plaintiff taxpayer, trustee of a Massachusetts trust with transferable shares, appeals from a decision of the Appellate Tax Board. Neither party requested the board to make findings of fact and a report thereof. The defendant commission argues that the board's decision must have turned on the factual question whether the receipts in dispute were "shown by the books" of the trust before 1971. G. L. c. 62, Section 1 (f), as appearing in St. 1971, c. 555, Section 5. This, says the commission, is the sole issue presented by the appeal. We hold that this issue does not appear to have been raised in the proceedings before the board and therefore cannot be considered by us. G. L. c. 58A, Section 13. We reverse and order the disputed tax abated.

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We summarize the facts shown by the admissions in the answer and the brief of the commission. The trust never filed an agreement to be taxed and was not subject to income tax before 1971, but became subject to tax under G. L. c. 62, Sections 1-8, as appearing in St. 1971, c. 555, Section 5. In 1966 the trust made an instalment sale of Massachusetts real estate, and reported the sale as an instalment sale on its 1966 Federal income tax return. Its Federal income tax return for 1971 included receipts of $70,043 on account of the 1966 sale. The commission contended that these receipts were taxable at nine per cent as capital gains under Section 4 (a) (3). The plaintiff claimed that the receipts were "tax-free earnings and profits" under Section 8 (c), and filed an application for abatement of the tax. The commission denied the application, but reduced the amount of gain from $70,043 to $50,010 after receiving additional information as to the Massachusetts cost basis of the property sold in 1966.

Under Section 8 (c) any "earnings and profits accumulated prior to the effective date" of that section (which was to take effect for taxable years commencing after December 31, 1970, St. 1971, c. 555, Section 67) and during a period when the trust "was not subject to taxation . . . solely by reason of the fact that it had elected not to file with the commissioner an agreement to pay a tax shall be considered tax-free earnings and profits." Dividends paid from such tax-free earnings and profits are subject to taxation. The question whether accrued profit on a 1966 sale had been "accumulated" before 1971 even though not yet received in money was fairly presented to the board, and it would appear that it was decided against the taxpayer. The commission does not defend on that basis, however, in effect conceding that such a decision by the board would be erroneous. Cf. First Sav. & Loan Assn. 40 T. C. 474, 487 (1963). Contrast Johnson v. Commissioner Int. Rev. 56 F. 2d 58, 59 (5th Cir. 1932), cert. den. 286 U. S. 551 (1932) (cash receipts and disbursements basis); N. J. Ennis, 17 T. C. 465, 470

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(1951) (same). We therefore need not decide the point. Nor do we decide whether it makes any difference that the trust used the instalment method on its Federal income tax returns. Cf. G. L. c. 62, Section 63, as amended by St. 1971, c. 555, Section 18, under which use of that method apparently required the permission of the commission.

The commission relies entirely on Section 1 (f), defining "dividend," as "used in this chapter," as a "distribution . . . made . . . out of . . . earnings and profits," and adding: "Earnings and profits, as used herein, mean the earnings and profits shown by the books of the corporation or other entity making the distribution." The commission apparently assumes that this language was intended to be applied to Section 8 (c) so as to make a retroactive bookkeeping rule for transactions recorded before the statute was enacted in 1971.

We need not pass on this point, however, in view of G. L. c. 58A, Section 13, as amended through St. 1973, c. 1114, Section 5, which provides: "The court shall not consider any issue of law which does not appear to have been raised in the proceedings before the board." There is in the record before us no hint that any issue as to what was "shown by the books" of the trust was so raised.

The decision of the board is reversed. The plaintiff's application for abatement is to be granted.

So ordered.