Home DAVID P. STEVENS vs. UNITED ARTISTS CORPORATION (and seven companion cases).

373 Mass. 857

September 28, 1977

At the argument before this court, the defendants (appellees) moved to dismiss these appeals by reason of the late filing of the plaintiff's (appellant's) brief and record appendix, and further moved to strike the plaintiff's brief on the ground that he had set out therein as an addendum certain materials which were not properly part of the record. The first motion is denied; the second is granted to the extent of striking the addendum from the brief.

The plaintiff brought separate actions in the Municipal Court of the City of Boston against eight corporate defendants for breach of an alleged agreement to compensate him for certain services to be rendered. On consolidated trial of the actions, the trial judge found in favor of the defendants, and later denied a motion for a new trial. He disallowed a "second substitute draft report" with respect to rulings made at the conclusion of the trial, but allowed a report regarding the denial of the new trial. Proceeding to the Appellate Division of the Municipal Court, the plaintiff petitioned to establish the report concerning the trial, and, on the allowed report, sought to obtain a reversal of the denial of a new trial. The plaintiff appeals to this court from orders of the Appellate Division, accompanied by a detailed opinion by Lewiton, C.J., dismissing the petition to establish the report, and dismissing the report on the new-trial denial. We agree with the Appellate Division that the petition failed for want of a verification that the draft report conformed to the truth. See Cook v. Kozlowski, 351 Mass. 708 (1967); Lasell v. Director of the Div. of Employment Security, 325 Mass. 23, 25-26 (1949); Dist. Mun. Cts. R. Civ. P. 64 (e) (1975). We agree also with the grounds stated for dismissing the allowed report, including the ground that the rulings made by the trial judge in denying the new trial were not shown to be erroneous.

Orders of the Appellate Division affirmed.


373 Mass. 857

November 4, 1977

This is an appeal by the taxpayer from a decision of the Appellate Tax Board refusing abatements of two assessments of additional tax

Page 858

made by the Commissioner of Corporations and Taxation in respect to the taxpayer's resident individual income tax return for the year 1970. The error claimed is that there is inadequate support for the Board's finding that the taxpayer was an "inhabitant of this commonwealth" during the taxable year, which rendered him amenable under G. L. c. 62, Section 5 (b) and (c) (as in effect for 1970), to tax on business income resulting from the sale of real estate and on net capital gain arising from a corporate dissolution. We said in Beardsley v. Assessors of Foxborough, 369 Mass. 855, 856 n.3 (1976), interpreting G. L. c. 58A, Section 13 (describing the formal procedure): "The question whether the evidence warrants a finding made by the board is a question of law which may be considered by us only where (a) the issue has been raised before the board, (b) a party has requested `findings and report thereon' from the board, and (c) the record contains all the evidence which is necessary for our consideration of the question." See also New Bedford Gas & Elec. Light Co. v. Assessors of Dartmouth, 368 Mass. 745, 748-751 (1975); Coomey v. Assessors of Sandwich, 367 Mass. 836, 839 (1975). In the present case we can discern from the record on appeal that the issue of the taxpayer's domicil was before the Board, but the record has been left fatally deficient in the other two respects. Accordingly, we may not disturb the Board's finding.

Decision of the Appellate Tax Board affirmed.