# Motion to Dismiss or Affirm — Smith v. Commissioner of Revenue > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2373%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Motion to Dismiss or Affirm - **Published:** January 1, 1981 - **Citation:** 454 U.S. 804 ## Text Office -Supreme Court, U.S BILED JUL 27 1981 ALEXANDER L. STEVAS, IN THE SUPREME COURT OF THE UNITED STATES October Term, 1981 MILTON J. SMITH, TRUSTEE, Appellant, Vv. COMMISSIONER OF REVENUE, Appellee. On Appeal From The Supreme Judicial Court For The Commonwealth of Massachusetts MOTION TO DISMISS FRANCIS X. BELLOTTI Attorney General MICHAEL BROAD Assistant Attorney General Government Bureau One Ashburton Place Boston, MA 02108 (617) 727-1034 TABLE OF CONTENTS TABLE OF AUTHORITIES QUESTION PRESENTED STATEMENT OF THE CASE ARGUMENT CONCLUS ION CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Barnes v. State Tax Commission, 353 Mass. 589 (1973) Ingraham v. State Tax Commission, 358 Mass. 242 (1975) Lake Superior Mines v. Lord, 271 U.S. 577 (1926) Mahoney v. Board of Assessors, 362 Mass. 210 (1972) Minnesota v. Clover Leaf Creamery Co., 66 L.Ed. 24 659 (1981) New York et rel. Cohn v. Graves, 300 U.S. 308 (1937) Smith v. Commissioner of Revenue, Mass. Adv. Sh. (1981) 677, ie Be 2a EN ba United States Railroad Retirement Board v. Fritz, 66 L.Ed 2d 368 (1980) Weinstock v. Town of Hull, 367 Mass. 656, appeal dismissed 423 U.S. 805 (1975) id Spe w STATUTES Mass. Gen. Laws c. 59 c. 59, §5 c. 59, §18 Mass. Gen. Laws c. 62 - iii - No. 80-2207 IN THE SUPREME COURT OF THE UNITED STATES October Term, 1981 MILTON J. SMITH, TRUSTEE, Appellant, Vv. COMMISSIONER OF REVENUE, Appellee. On Appeal From The Supreme Judicial Court For The Commonwealth of Massachusetts MOTION TO DISMISS QUESTION PRESENTED Whether Massachusetts may impose a property tax on real property and an income tax on rents generated by that property. STATEMENT OF THE CASE The Commissioner of Revenue accepts appellant's statement of the case. ARGUMENT Under Massachusetts law, real estate is subject to local taxation under “.G.L. c. 59 and the rents and profits, if any, are included in the owner's gross income for state income tax purposes pursuant to M.G.L. c. 62. The 1971 revision of M.G.L. c. 62 at issue in this case "com- pletely rewrote the Tncome Tax Law." Barnes v. State Tax Commission, 353 Mass. 589, 592-93 (1973). "fTlhe Legislature was fully aware of the fact that rental income would be taxed under the proposed revision” of the statute. Ingraham v. State Tax Commission, 358 Mass. 242, 245 (1975). There is no impermissible double taxation here. Ownershipd and use are distinct, and each may be taxed sepa- rately. See New York ex rel. Cohn v. Graves, 300 U.S. 308, 316 (1937); Lake Superior Mines v. Lord, 271 U.S. 577, 581-82 (1926). Nor does the tax violate equal pro- tection as claimed by the Trustee. The Trustee points to M.G.L. c. 59, §5, Seventeenth, which exempts from _ local taxation "Property, other than real estate, the income from which is taxed under Chapter sixty-two, or would be tax- able thereunder if the property yielded income" (emphasis added). Despite the general exception under G.L. c..59, §5, Seventeenth, however, the Legislature has provided for direct tax on substantial amounts of property the income of which is also taxed under M.G.Le Cc. 62. See, @.9., M.G.L. c. 59, §18, Second (personal property tax on unincorporated business); Mahoney v. Board of Assessors, 342 Mass. 219, 213 n.2 (1972) (citing princival exemotions to such taxation). Peal estate does not stand alone. Moreover, as the Supreme Judicial Court observed: There is a rational basis for the Legislature to subject real estate to local taxation (subh- ject to exemptions for certain real estate), and not to sub- ject other income-producing property to local taxation. [It can be found in the expectancy that real estate as a class generally will be the benefi- ciary of local services in a far greater degree than other forms of income producing property. Smith v. Commissioner of Revenue, “ass. Adv. Sh. (1981) 677, 678, NE. 2d ° Any distinction in a tax statute that has a rational basis will survive an equal protection challenge. Weinstock v. Town of Hull, 347 Mass. 65, appv. dis- missed for want of substantial federal question, 423 U.S. 8305 (1975). Because there are “plausible reasons" for the distinction, no equal protection viola- tion can be found. United States Railroad Retirement Board v. Fritz, 66 L. Ed. 2d 368, 378 (1980); see Minnesota v. Clover Leaf Creamery Co., 66 L.Ed. 2d 659 (1981). CONCLUS ION Because no substantial federal ques- tion is presented, the apneal should he dismissed. Respectfully submitted, FRANCIS X. BELLOTTI ATTORNEY GENERAL Assistant Attorney General] Government 83ureau One Ashburton Place Boston, MA 92108 (617) 727-1034 Date: July 24, 1981 CERTIFICATE OF SERVICE I, Michael Broad, Assistant Attornev General, hereby swear that I have by July 24, 1981, served the within Motion to Dismiss by mailing three copies postage prepaid to: William Gabovitch, 40, Court Street, Boston, MA 02108. Wirbed b> -/0 Assistant Attorney General Department of the Attorney General One Ashburton Place Room 2019 Boston, Massachusetts 92108 (617) 727-1034 ary ’ Dated: July 24, 1981 My Commission "Expires: Wy, Vb 6 Lx. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2373%3A2. Public record. Not legal advice.