LOUIS DECOTA vs. TOWN OF STOUGHTON (and a companion case ).

LOUIS DECOTA vs. TOWN OF STOUGHTON (and a companion case [Note 1]).

23 Mass. App. Ct. 618

January 21, 1987 - March 6, 1987

Norfolk County

Present: KASS, QUIRICO, & WARNER, JJ.

The treasurer-collector of a town, acting pursuant to G. L. c. 60, Section 93, properly withheld the amount of the judgment creditor's unpaid real estate taxes from the sum paid pursuant to a judgment on account of certain land takings, even though the statute of limitations would have barred the town from recovering the unpaid taxes in an action under G. L. c. 60, Section 35. [619-621]

CIVIL ACTIONS commenced in the Superior Court on April 8, 1976.

Motions for the issuance of successive or alias executions were heard by Suzanne V. DelVecchio, J.

Joyce Frank for the defendant.

Francis J. Finnell for the plaintiff.

WARNER, J. On April 8, 1976, the plaintiff commenced two eminent domain actions (later consolidated) against the defendant, the town of Stoughton. On December 12, 1985, the parties entered into an agreement for judgment which called for the payment to the plaintiff of $650,000 on account of the land takings. Execution issued on December 19, 1985. The treasurer-collector for the town made an examination of the collector's records about February 11, 1986, which revealed that the plaintiff owed real estate taxes on properties not subjects of the taking in the amount of $18,984.93. Relying on G. L. c. 60, Section 93, as amended by St. 1945, c. 397, Section 2, the pertinent

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portions of which are set out in the margin, [Note 2] the treasurer-collector, acting as treasurer, subsequently withheld that sum from the amount paid pursuant to the agreement for judgment. Thereafter, the plaintiff filed motions for successive or alias executions for the amount withheld plus interest which were allowed by a Superior Court judge. From that action, the town appeals.

The parties are in agreement that (1) the remedies afforded municipalities for the collection of taxes are cumulative, see Boston Five Cents Sav. Bank v. Boston, 318 Mass. 183 , 188 (1945), and (2) G. L. c. 60, Section 93, provides a statutory set-off procedure. Id. at 185-186. The plaintiff does not contest, nor could he, the assessment or the amount of the taxes in question. See Sears v. Nahant, 221 Mass. 435 (1915); Boston v. Second Realty Corp., 9 Mass. App. Ct. 282 (1980), and cases cited. Rather, the plaintiff argues, the town is barred from setting off the amount of these real estate taxes because it would have been foreclosed from bringing an action of contract against the plaintiff to recover them. See G. L. c. 60, Section 35, and G. L. c. 260, Section 2. [Note 3]

One of the ways by which a municipality may recover delinquent real estate taxes is by an action in contract. G. L. c. 60, Section 35, as appearing in St. 1946, c. 251, Section 1. [Note 4] If that route is

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chosen, the six-year statute of limitations contained in G. L. c. 260, Section 2, applies. Boston v. Gordon, 342 Mass. 586 , 589-591 (1961). [Note 5] However, we think the plain language of the statutes involved and the obvious purpose for which they were enacted, see Mellor v. Berman, 390 Mass. 275 , 280-281 (1983), compel the conclusion that the Legislature intended the remedy provided by G. L. c. 60, Section 93, to be not only cumulative but unaffected by any statute of limitations. General Laws c. 60, Section 35, itself provides that an action in contract is only one method for the collection of delinquent taxes from the taxpayer; such may be recovered "in an action of contract or in any other appropriate action, suit or proceeding . . . against the person assessed for such tax" (emphasis supplied). A "statute of limitations bars the [particular] remedy but does not destroy the right." Mulligan v. Hilton, 305 Mass. 5 , 11 (1940). The "language [of G. L. c. 60, Section 93] is broad in scope. It authorizes the treasurer to `withhold payment of any money payable to any person' whose taxes are unpaid in whole or in part. It empowers the treasurer to withhold voluntarily, and

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makes such action mandatory on him if the collector so requests. The only limitation is that the amount withheld shall not exceed the unpaid tax with interest and costs." Boston Five Cents Sav. Bank v. Boston, supra at 186. "Clearly the withholding in question was authorized by Section 93 unless it was expressly or impliedly prohibited by some other provision of law." Ibid. We hold that there is no such prohibition. The Legislature could, and we think did, determine that where public funds are to be paid to a delinquent taxpayer it is appropriate and in the public interest that, by a set-off procedure, the taxpayer satisfy his outstanding proportionate obligation (to the extent of the available payment) to fund the operation of the government, see art. 10 of the Declaration of Rights of the Constitution of the Commonwealth, without regard to whether that obligation could be enforced by an in personam action in contract against the plaintiff. See Boston v. Gordon, supra at 591. The statutory scheme in this regard is consistent. See the essentially parallel provisions of G. L. c. 79, Section 44A, which applies when the unpaid taxes relate to the land taken by eminent domain. See also G. L. c. 41, Section 38A, as appearing in St. 1941, c. 211. ("Such a collector [of taxes] shall in the collection of such accounts [due to a city or town] have all the remedies provided by sections thirty-five, thirty-six and ninety-three of chapter sixty for the collection of taxes on personal estate").

The orders allowing the motions for issuance of successive or alias executions are vacated.

So ordered.

FOOTNOTES

[Note 1] The companion case is between the same parties.

[Note 2] "The treasurer or other disbursing officer of any town may, and if so requested by the collector shall, withhold payment of any money payable to any person from whom there are then due taxes, assessments, rates or other charges committed to such collector, which are wholly or partly unpaid, whether or not secured by a tax title held by the town, to an amount not exceeding the total of the unpaid taxes, assessments, rates and other charges, with interest and costs. The sum withheld shall be paid or credited to the collector, who shall, if required, give a written receipt therefor."

[Note 3] The plaintiff also argues on appeal that the set-off procedure violated his rights to due process in that he was denied the opportunity to raise the question of the applicability of the statute of limitations before the taxes were withheld. This issue was not adequately raised in the Superior Court, and we do not consider it. See Trustees of Stigmatine Fathers, Inc. v. Secretary of Admn. & Fin., 369 Mass. 562 , 565 (1976); Caswell v. Licensing Commn. for Brockton, 387 Mass. 864 , 866 n.2 (1983). But, as to the merits of the issue, cf. Old Colony R.R. v. Assessors of Boston, 309 Mass. 439 (1941).

[Note 4] General Laws c. 60, Section 35, provides: "If a tax which has been committed to a collector remains unpaid after it has become due and payable, it may be recovered in an action of contract or in any other appropriate action, suit or proceeding brought by the collector either in his own name or in the name of the town against the person assessed for such tax."

[Note 5] In the Superior Court and in this court the plaintiff conceded that the amount of delinquent taxes withheld from the eminent domain payment represented taxes for the fiscal years (July 1 through June 30, see G. L. c. 44, Section 56, & c. 59, Section 57) 1976-1977 "to the present" (i.e., 1986). Thus, it is clear that, even if the plaintiff's statute of limitations argument were valid, an action in contract for the recovery of some of the unpaid taxes would not have been barred when the set-off under G. L. c. 60, Section 93, was made.

We note that, on the plaintiff's concession, none of the town's claims for unpaid taxes had matured when the eminent domain actions were commenced on April 8, 1976. A set-off existing at the time an action is filed may be pleaded by permissive counterclaim and a set-off which later matures may likewise be pleaded with the approval of the court. Mass.R.Civ.P. 13(b) & (e), 365 Mass. 758 , 759 (1974). In either case, the statute of limitations as to the set-off is computed "as if an action had been commenced therefor at the time the plaintiff's action [here the eminent domain actions] was commenced." G. L. c. 260, Section 36, inserted by St. 1973, c. 1114, Section 341. See generally Bose Corp. v. Consumers Union of United States, Inc., 367 Mass. 424 , 427-431 (1975).