MASSACHUSETTS ASSOCIATION FOR THE BLIND vs. BOARD OF ASSESSORS OF BROOKLINE.

ABRAMS, J. The Massachusetts Association for the Blind (association) appeals from a decision of the Appellate Tax Board (board) dismissing for lack of jurisdiction the association's appeal from the denial of an abatement of a $35,600 real estate tax assessed for the 1977 fiscal year on property acquired by the association in 1976. The application was filed with the assessors on October 31, 1980, pursuant to St. 1980, c. 560, [Note 1] which authorized abatement applications by charitable organizations that, because of a failure to file a list of property required under G. L. c. 59, Section 29 [Note 2]

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(Form 3 ABC), were ineligible for a charitable exemption under G. L. c. 59, Section 5, Third, [Note 3] during any year encompassed in the period beginning January 1, 1969, and ending June 30, 1980. [Note 4] Under St. 1980, c. 560, such charitable organizations were permitted to submit abatement applications provided that the requisite Form 3 ABC was filed on or before November 1, 1980, and that "but for the failure to file said list with the respective assessors for taxable years [1969-1980], [the organization] would have received a property tax exemption in said years." [Note 5]

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The association, which had unsuccessfully attempted to obtain an abatement of the fiscal year 1977 tax in a proceeding involving an application for abatement filed in 1976, submitted the requisite Form 3 ABC [Note 6] with its 1980 abatement application. On January 23, 1981, the assessors denied the abatement. The association appealed under formal procedure to the board. After hearing oral argument on a petition to dismiss filed by the assessors, the board, on January 22, 1982, dismissed the association's appeal for lack of jurisdiction. The board subsequently issued its findings of fact and report. The association appeals to this court pursuant to G. L. c. 58A, Section 13. We remand the case to the board for further proceedings.

The following factual findings by the board are not disputed. The tax was assessed to St. Dominic's Institute, Inc. (St. Dominic's), a Massachusetts corporation organized under G. L. c. 180, which, on January 1, 1976, was the owner of record of the property. The association purchased the property from St. Dominic's on June 26, 1976. St. Dominic's, as the "person . . . assessed," filed an application for abatement on October 15, 1976. [Note 7] See G. L. c. 59, Section 59, as amended through St. 1974, c. 831, Section 4. In compliance with G. L. c. 59, Section 57, as amended through St. 1976, c. 250, Section 1, permitting payment without interest of the tax in two installments due November 1 (or thirty days after the bill was sent) and May 1, the association paid one half of the tax on November 1, 1976. On or about January 11, 1977,

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the assessors notified St. Dominic's that its application for abatement had been denied. On April 8, 1977, the association filed an appeal in its own name from the assessors' refusal to abate the tax and, eighteen days later, made timely payment of the second instalment of the tax.

The assessors filed a plea in bar with the board on September 16, 1977, alleging that, because the tax had not been assessed to the association, payment of the entire tax was a prerequisite to the association's right to appeal the denial of the abatement under G. L. c. 59, Section 59, and that, the association having paid only one half of the tax before appealing, the board lacked jurisdiction over the appeal. The assessors also claimed as jurisdictional defects the omission to submit a certification that an annual report (Form PC) had been filed with the Attorney General as required by G. L. c. 12, Section 8F, [Note 8] and the failure to file Form 3 ABC. On November 4, 1977, prior to a determination by the board of the jurisdictional issue, the association withdrew its appeal.

The board concluded that St. 1980, c. 560, did not revive the association's right to apply for an abatement of the 1977 tax [Note 9] because the association would have been precluded from obtaining an abatement for that year even if the Form 3 ABC had been filed. At the time the 1977 appeal was filed, G. L. c. 59, Section 59, as amended through St. 1974, c. 831, Section 4, provided in pertinent part: "A person upon whom a tax has been assessed . . ., if aggrieved by such tax, may . . . apply in writing to the assessors . . . for an abatement thereof . . . . If a person other than the person to whom a tax on real estate is assessed is the owner thereof, or has an interest therein, or is in possession thereof, and pays the tax, he may thereafter prosecute in his own name any application, appeal or action provided by law for the abatement or recovery of such tax, which after the payment thereof

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shall be deemed for the purposes of such application, appeal or action, to have been assessed to the person so paying the same. The holder of a mortgage on real estate who has paid not less than one-half of the tax thereon may . . . apply in the manner above set forth for an abatement . . . [and] thereafter prosecute any appeal or action provided by law for the abatement or recovery of such tax in the same manner and subject to the same conditions as a person aggrieved by a tax assessed upon him" (emphasis supplied). The board concluded that the statutory requirement that a nonassessed owner pay "the tax" prior to prosecuting an appeal necessitated payment of the entire tax, and held that the association's timely payment of the tax in compliance with the payment schedule permitted under G. L. c. 59, Section 57, was insufficient to confer jurisdiction upon the board over the association's 1977 appeal. The board also concluded that St. 1977, c. 198, [Note 10] was not applicable to that appeal. [Note 11]

We agree with the board that, prior to the 1977 amendment, Section 59 required a nonassessed owner to make full payment of the tax before appealing. The short answer to the association's claim to the contrary is that Section 59 authorizes a mortgage holder "who has paid not less than one-half of the tax" to apply for an abatement in the interim between September 20 and October 1 of the fiscal year for which the tax is assessed. Where the statute

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explicitly creates a category of nonassessed persons entitled to commence abatement proceedings by paying "not less that one-half of the tax," we cannot construe the requirement that a different category of persons pay "the tax" as being satisfied by the payment of half the tax prior to initial involvement in the abatement process. [Note 12]

At the time the Legislature amended the sections on the jurisdictional requirements for appeals by "person[s] aggrieved," it did not change the jurisdictional requisites of Section 59 for the prosecution of abatement requests by nonassessed parties. See Boston Five Cents Sav. Bank v. Assessors of Boston, 313 Mass. 762, 768 (1943). We cannot interpret the meaning of "pays the tax" to entitle the association to appeal by following the instalment payment schedule where the Legislature made no such provision. The Legislature did not elect to place abatement proceedings involving nonassessed owners on a jurisdictional par with those involving assessed owners until it amended Section 59 by St. 1977, c. 198. [Note 13] The board did not, therefore, have jurisdiction over the association's 1977 appeal unless St. 1977, c. 198, was applicable to that appeal. See note 10, supra.

We disagree, however, with the board's conclusion that St. 1977, c. 198, was not applicable to the association's appeal. The

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applicability of a statute to cases pending on its effective date often turns on whether the statute affects procedural or substantive rights. See Goodwin Bros. Leasing v. Nousis, 373 Mass. 169, 173 (1977). The board concluded that the statute affected substantive rights by creating a "new class" of "person[s] aggrieved," namely persons acquiring title to assessed property after January 1 and electing to pay the tax in two instalments. However, it can be argued with equal vigor that the statute merely altered the time at which tax payments were due from a preexisting class of "person[s] aggrieved." i.e., persons acquiring title after January 1 and paying the tax. In this case, as in others, the distinction between "substantive" and "procedural" is elusive. See City Council of Waltham v. Vinciullo, 364 Mass. 624, 626-627 (1974); Lindberg v. State Tax Comm'n, 335 Mass. 141, 143 (1956). Because the remedial nature of the statute is apparent, and because, in our view, application of the statute would not necessarily interfere with the substantive rights of the assessors or of the town of Brookline, we hold that the statute operated to validate the 1977 claim of appeal.

We note initially that the statutory language itself suggests a legislative intent to make the statutory provisions applicable to cases pending on the effective date. The statute requires that a person acquiring title after January 1 "in any year" be treated as an assessed owner for that year. Absent language explicitly resuscitating a concluded or expired cause of action, cf. St. 1980, c. 560; Mulligan v. Hilton, 305 Mass. 5, 8-9 (1940), we would not read "in any year" as applicable "to a case which has been closed, i.e., has gone to judgment and either been affirmed on appeal or not been appealed within the time allowed for appeal," City Council of Waltham v. Vinciullo, supra at 627. However, the association's appeal had not been conclusively adjudicated at the time the statute became operative. [Note 14]

The year during which the association acquired the property is literally subsumed in the phrase "in any year." We can think of no reason why St. 1977, c. 198, did not by its express terms entitle the association to be treated on a jurisdictional par with

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an assessed owner for the purposes of the pending appeal. See E.B. Horn Co. v. Assessors of Boston, 321 Mass. 579, 582-583 (1947); Wynn v. Assessors of Boston, 281 Mass. 245, 250, 251 (1932). Further, "statutes which are remedial or procedural should be deemed to apply retroactively to those pending cases which, on the effective date of the statute, have not yet gone beyond the procedural stage to which the statute pertains." City Council of Waltham v. Vinciullo, 364 Mass. 624, 628 (1974). "Where . . . the statute regulates practice, procedure or evidence, as distinguished from substantive rights, it will commonly be applied to actions already pending." Goodwin Bros. Leasing v. Nousis, 373 Mass. 169, 173 (1977).

A contrary conclusion is inconsistent with the statute's remedial purposes. The pre-1977 requirement that a nonassessed owner, unlike an assessed owner, make full payment before appealing to the board has been described by one commentator as a "trap for the unwary," an "unintentional by-product," of the shift from annual to semiannual property tax bills. E. Hines, State and Local Taxation, 1975 Ann. Survey Mass. Law Section 11.5, at 214. Statute 1977, c. 198, was enacted in response to the clear need for legislative action to eliminate this "trap." See E. Hines, State and Local Taxation, supra, and note 13, supra. Application of St. 1977, c. 198, to salvage the undismissed appeal [Note 15] of a victim of that "trap" would effectuate the objective of granting "the broadest application to legislatively mandated procedural changes without subjecting each completed step in the course of a litigation to the uncertainty of possible future legislative changes" (emphasis added). City Council of Waltham v. Vinciullo, supra at 628.

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The assessors claim that a retroactive application of St. 1977, c. 198, would disturb vested rights by "depriv[ing] the Town of Brookline of tax receipts to which it became absolutely entitled on April 11, 1977," the last date on which the association could have filed an appeal complying with the jurisdictional requisites in effect prior to the 1977 amendment. [Note 16] The 1977 amendment did not affect the town's presumptive entitlement to collect the assessed tax, nor did it confer upon the taxpayer a right to an abatement on substantive principles not in existence under prior law. See E.B. Horn Co. v. Assessors of Boston, 321 Mass. 579, 582 (1947). The amendment merely made less onerous the conditions under which a nonassessed owner could obtain a hearing on the merits of the assessors' denial of an abatement and ensured that the right to appeal should not be inadvertently lost because of a transfer of ownership. No vested property rights are affected by the retroactive application of a statute affecting a taxpayer's right to appeal to the board. E.B. Horn Co. v. Assessors of Boston, supra at 584. The town retains its substantive right to collect the tax, subject only to the qualification that the board might determine that the denial of an abatement was erroneous. [Note 17]

The result we reach "is buttressed by considerations of fairness." City Council of Waltham v. Vinciullo, supra at 629. Neither the town nor the assessors were prejudiced in any way by the fact that the otherwise timely payment of the second instalment of the tax was not received until after the association's appeal was filed. See Boston Five Cents Sav. Bank v. Assessors of Boston, 311 Mass. 415, 420 (1942). By contrast, a prospective application of St. 1977, c. 198, would have the harsh effect of denying the association a hearing on the merits of its 1980 application because of a technicality acknowledged by the Legislature to be obsolete while the 1977 appeal was pending. Neither precedent nor policy counsel such a result.

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Our conclusion that the board's jurisdiction over the abatement appeals was not divested by the association's failure to pay the entire tax before filing the 1977 appeal does not end the jurisdictional inquiry. The board's opinion refers to "other jurisdictional problems [with the association's 1977 appeal] which are not addressed in this Opinion for the reason that its failure to pay `the tax' before filing its appeal is alone sufficient reason for the Board to decline jurisdiction." The board specifically mentioned the failure of St. Dominic's or the association to provide certification that Form PC had been filed. [Note 18] The board did not, however, rely on this potential defect in dismissing the appeal, and it is unclear from the record whether the association was given an opportunity to argue fully that question before the board. We therefore remand the case to the board for a full hearing on the effect of the omission on the board's jurisdiction. See Children's Hosp. Medical Center v. Assessors of Boston, 388 Mass. 832, 843 (1983). [Note 19] This matter is remanded to the board for proceedings consistent with this opinion.

So ordered.