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09/23/77 JOSEPH BORDEAU *FN1 v. REGISTRAR MOTOR

September 23, 1977

JOSEPH BORDEAU *FN1
v.
REGISTRAR OF MOTOR VEHICLES



Suffolk. Questions of law certified to the Supreme Judicial Court by the United States District Court for the District of Massachusetts.

Hennessey, C.j., Braucher, Wilkins, Liacos, & Abrams, JJ.

SYLLABUS BY THE COURT

Statute, Construction. Taxation, Motor vehicle excise tax: abatement, void tax. Words, "Overpayment," "Excise."

The opinion of the court was delivered by: Liacos

The owner of a registered motor vehicle may contest costs or fees assessed in connection with allegedly delinquent excise taxes imposed on the vehicle by following the abatement procedure set forth in G. L. c. 60A, § 2, as amended, although that section expressly mentions only interest; the provision of § 2 that if an abatement of an "excise" is granted "any overpayment with interest thereon . . . shall be refunded" broadens the scope of "excise" to include other costs. [432-433]

G. L. c. 60, § 98, is not available as a remedy for recovery of costs and interest in connection with allegedly delinquent excise taxes not claimed to be totally void. [433-435]

If an application for abatement of a motor vehicle excise tax is not applied for "on or before December thirty-first of the year next succeeding the year to which the excise relates," as specified in G. L. c. 60A, § 2, as amended, the taxpayer may not contest the excise and any associated fees and costs by an abatement action under that section, even though after such time the local collector institutes proceedings under § 2A for suspension of the certificate of registration. [436]

After expiration of the period specified in G. L. c. 60A, § 2, as amended, for bringing an action for abatement of a motor vehicle excise tax not claimed to be totally void, the taxpayer may not contest the excise and any associated fees and costs by a proceeding under c. 60, § 98, even though after such period the local collector institutes proceedings authorized by c. 60A, § 2A, for suspension of the registration certificate. [436-437]

A three-Judge United States District Court has certified five questions pursuant to Supreme Judicial Court Rule 3:21, 359 Mass. 790 (1971). These questions concern the applicability and interpretation of various statutes governing the remedies available to a taxpayer who wishes to contest the validity of an automobile excise tax imposed on a motor vehicle registered in his name. G. L. c. 60A, § 1.

The plaintiff initiated this action on behalf of himself and others similarly interested, Fed. R. Civ. P. 23, under 42 U.S.C. § 1983 (1970), in the United States District Court, District of Massachusetts. A three-Judge District Court was convened in accordance with 28 U.S.C. §§ 2281 and 2284 (1970) to adjudicate the plaintiff's claim that G. L. c. 60A, § 2A, as amended through St. 1973, c. 139, *fn2 is invalid, on its face and as applied, in so far as the statute authorizes the Registrar of Motor Vehicles to suspend without a hearing the automobile registration of any person who fails to pay his State automobile excise tax. The questions posed by the Federal court for our resolution concern not the constitutionality of the Massachusetts procedures, but whether the various Massachusetts statutes, in particular G. L. c. 60A, § 2, as amended through St. 1974, c. 211, *fn3 and G. L. c. 60, § 98, provide one such as the named plaintiff a means to contest not only the amount of excise tax actually due but any incidental costs and interests appurtenant to the basic excise tax liability. The specific questions will be set forth in the margin at appropriate points in this opinion.

1. We have recently set forth the general principles governing our role in answering certified questions. Baird v. Attorney Gen., 371 Mass. 741 (1977). We need not recite those same principles in detail here. It is sufficient to state that, where a question is certified concerning the meaning of a State statute, that construction of the statute which will result in an adjudication of its constitutional validity should be adopted, if possible. Baird v. Attorney Gen., supra.

2. The statutory scheme under which this case arises imposes an excise tax "on every motor vehicle and trailer registered under chapter ninety, for the privilege of such registration." G. L. c. 60A, § 1, as amended through St. 1974, c. 242, § 1. The tax bills are furnished by the Registry of Motor Vehicles to the local tax collectors, who then forward the bill to the registered owner. G. L. c. 60A, § 2. Payment of the bill is due sixty days after the collector sends it out irrespective of whether the registrant actually receives such notice. Id.

If the tax is not paid within the sixty days, the local collector may then send out a demand notice, but such notice may not be sent out until at least thirty days after the tax is due and payable. G. L. c. 60A, § 2A. If the tax is still unpaid fourteen days after such demand, the local collector is required to notify the Registrar who in turn is to notify the taxpayer that the automobile registration will be suspended without further notice unless the taxpayer furnishes, within thirty days of the mailing of the Registrar's notice, evidence that the accrued amounts have been paid. It is the operation of this provision which forms the basis of the plaintiff's case in the Federal court.

3. The first question certified by the District Court *fn4 concerns the scope of the abatement procedure set forth in G. L. c. 60A, § 2, as amended through St. 1974, c. 211. The key language in § 2 provides that: "The owner, if aggrieved by the excise assessed, may on or before December thirty-first of the year next succeeding the year to which the excise relates apply for an abatement . . . . If an abatement is granted of an excise . . ., any overpayment with interest thereon . . . shall be refunded." The abatement procedure also provides appellate remedies to proper administrative bodies. See G. L. c. 59, §§ 64, 65. It should be noted at this point that the local collector may not send a notice of ...


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