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SJC-12328

    WORLDWIDE TECHSERVICES, LLC vs. COMMISSIONER OF REVENUE
           & another1 (and three consolidated cases2).



         Suffolk.     November 7, 2017. - February 22, 2018.

         Present:   Gants, C.J., Gaziano, Lowy, Budd, Cypher,
                             & Kafker, JJ.


Taxation, Abatement, Sales and use tax. Practice, Civil,
     Abatement, Intervention. Administrative Law, Intervention.
     Due Process of Law, Intervention in civil action.



     Appeal from a decision of the Appellate Tax Board.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Edward D. Rapacki for the intervener.
     John A. Shope (Michael Hoven also present) for the
taxpayers.


     1
       Econo-Tennis Management Corp., intervener, doing business
as Dedham Health and Athletic Complex.
     2
       BancTec Third Party Maintenance, Inc. vs. Commissioner of
Revenue & another; QualxServ, LLC vs. Commissioner of Revenue &
another; and Dell Marketing L.P. vs. Commissioner of Revenue &
another. Banctec Third Party Maintenance, Inc., is now known as
QualxServ Third Party Maintenance, Inc.; and QualxServ, LLC, is
now known as WorldWide TechServices, LLC.
                                                                    2


     Daniel J. Hammond, Assistant Attorney General (Daniel A.
Shapiro also present) for Commissioner of Revenue.
     Ben Robbins & Martin J. Newhouse, for New England Legal
Foundation, amicus curiae, submitted a brief.


     KAFKER, J.   Fifteen years and three Supreme Judicial Court

decisions ago, this protracted case commenced regarding taxes

imposed on computer service contracts.    The litigation began

when purchasers of the service contracts filed a putative class

action against the sellers,3 claiming under G. L. c. 93A that the

imposition of these taxes was unlawful and an unfair and

deceptive practice.    The sellers successfully moved to compel

arbitration pursuant to the terms of the computer service

contracts, and a judge in the Superior Court eventually

confirmed the award.   The next chapter in this tax saga, and the

one we are required to decide today, then ensued.

     For the sole and express purpose of hedging their bets in

response to the class action, the sellers had applied for tax

abatements from the Commissioner of Revenue (commissioner)

beginning in 2004.    The commissioner denied the applications,

and the sellers petitioned the Appellate Tax Board (board).       The

appellant, Econo-Tennis Management Corp., doing business as

Dedham Health and Athletic Complex (Dedham Health), one of the

consumers who purchased these service contracts, moved to

     3
       We refer to BancTec Third Party Maintenance, Inc.,
QualxServ, LLC, and Dell Marketing L.P., the corporate appellees
in the present litigation, collectively as the "sellers."
                                                                    3


intervene in the proceedings, which the board allowed.

Thereafter, the board, with certain exceptions, reversed the

decision of the commissioner and allowed the abatements,

ordering the parties to compute the amounts to be abated.      Taxes

totaling $215.55 were imposed on the service contracts purchased

by Dedham Health.4   After the class action litigation on the

claims under G. L. c. 93A ended in the sellers' favor, the

sellers withdrew their tax abatement petitions with prejudice.

Dedham Health moved to strike the withdrawals.   The board denied

the motion to strike the withdrawals and terminated the

proceedings, deciding that "any pending or further motions . . .

[were] moot" and that it would "take no further action on these

appeals."   Dedham Health now appeals from that order.    We

transferred Dedham Health's appeal to this court on our motion

and now conclude that although the board did not err as a matter

of law in allowing the sellers' withdrawals, the board's

termination of the proceedings in their entirety, after

permitting Dedham Health to intervene and allowing the

abatements, was an error of law.   After the sellers' withdrawals

were allowed, Dedham Health should have been allowed to proceed




     4
       The sellers note that the evidence in the record before
the Appellate Tax Board (board) only reflects that Dedham Health
paid a total of $45.60, not $215.55. For the purposes of this
opinion, we need not address this issue.
                                                                    4


as an intervener on its own claim to recover the taxes imposed

on the service contracts it purchased.5

     1.   Background.    The instant cases arise out of the same

tax dispute at issue in Feeney v. Dell Inc., 454 Mass. 192

(2009) (Feeney I); Feeney v. Dell Inc., 465 Mass. 470 (2013)

(Feeney II); and Feeney v. Dell Inc., 466 Mass. 1001 (2013)

(Feeney III).   As we summarized in Feeney I, supra at 194, "Dell

Catalog Sales Limited Partnership (Dell Catalog) and Dell

Marketing Limited Partnership (Dell Marketing), wholly owned

subsidiaries of Dell Inc. (formerly Dell Computer Corporation),

sold computers and related products to consumers and businesses

and, in connection with such sales, also sold optional computer

hardware service contracts under which [the sellers] agreed to

provide onsite computer repairs to the purchasers."     Dell

Catalog and Dell Marketing collected tax on the optional service

contracts from their customers and remitted the tax to the

Department of Revenue.    Id. at 194 & n.6.   Under these service

contracts, "BancTech, Inc. . . . ; QualxServ LLC; or Dell

Marketing agreed to provide onsite computer repairs to the

purchasers."6   Id. at 194.   Dedham Health was one such consumer

who purchased Dell computer hardware and the accompanying

     5
       We acknowledge the amicus brief submitted by the New
England Legal Foundation in support of the sellers.
     6
       As noted in note 2, supra, the names of two of these
companies have since changed.
                                                                    5


service contracts.   Id.   Dedham Health asserted that the tax on

the optional service contracts was improper.    Id. at 193.

     Dedham Health and one other plaintiff who bought Dell

hardware and service contracts7 commenced a putative class action

against Dell Computer Corporation (Dell Computer) in 2003,

alleging that it had improperly collected and remitted tax on

the service contracts that the plaintiffs purchased, and that

collecting the tax violated the Massachusetts consumer

protection act, G. L. c. 93A.   Id. at 193, 196.     "The 'Dell

Terms and Conditions of Sale' . . . in effect at the time of the

plaintiffs' purchases contain an arbitration clause compelling

arbitration of any claim against Dell . . . and mandating that

any such claims be arbitrated on an individual basis" (emphasis

in original; footnote omitted).8   Id. at 194-195.    In July, 2003,


     7
       The other plaintiff was John A. Feeney, now deceased, who
is not a party to the present litigation.
     8
       The relevant portion of the "Dell Terms and Conditions of
Sale" provides:

          "ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN
     CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT
     OR FUTURE, AND INCLUDING STATUTORY, COMMON LAW, INTENTIONAL
     TORT AND EQUITABLE CLAIMS) AGAINST DELL, its agents,
     employees, successors, assigns or affiliates (collectively
     for purposes of this paragraph, 'Dell') arising from or
     relating to this Agreement, its interpretation, or the
     breach, termination or validity thereof, the relationships
     which result from this Agreement (including, to the full
     extent permitted by applicable law, relationships with
     third parties who are not signatories to this Agreement),
     Dell's advertising, or any related purchase SHALL BE
                                                                      6


Dell Computer moved to compel arbitration, and a judge in the

Superior Court allowed the motion.    Id. at 196-197.      "[The

plaintiffs] each filed a claim of arbitration 'under protest' in

November, 2004."    Id. at 197.   The arbitrator denied the

plaintiffs' request for class certification, and ruled in favor

of the defendants on the merits in 2007.     Id. at 198.

    "In February 2008, the plaintiffs moved in the Superior

Court to vacate the arbitration award," but their motion was

denied and the case was dismissed with prejudice.       Id.   The

plaintiffs appealed, and we granted their application for direct

appellate review.    Id.   In Feeney I, this court held that the

arbitration clause was void as against public policy, and

reinstated the Superior Court action.     Id. at 205, 214.     Less

than two years later, the United States Supreme Court ruled in

AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 351-352 (2011),

that the Federal Arbitration Act precludes invalidating class

waiver provisions in arbitration clauses on the basis of State

public policy favoring class actions.    In response to

Concepcion, we held in Feeney II that "a court may still


    RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION
    ADMINISTERED BY THE NATIONAL ARBITRATION FORUM (NAF) under
    its Code of Procedure then in effect (available via the
    Internet at http://www.arb-forum.com, or via telephone at
    1-800-474-2371). The arbitration will be limited solely to
    the dispute or controversy between Customer and Dell. Any
    award of the arbitrator(s) shall be final and binding on
    each of the parties, and may be entered as a judgment in
    any court of competent jurisdiction."
                                                                    7


invalidate a class waiver" post-Concepcion where, as here,

"class proceedings are the only viable way for a consumer

plaintiff to bring a claim against a defendant."     Feeney II, 465

Mass. at 501-502.     One week later, the United States Supreme

Court held in American Express Co. v. Italian Colors Restaurant,

570 U.S. 228, 238-239 (2013) (Amex), that an arbitration

agreement's class waiver is enforceable even if the class waiver

effectively precludes the plaintiff from vindicating his or her

Federal statutory rights.    In light of the Supreme Court ruling

in Amex, we held in Feeney III that the class waiver in the

present case could not be invalidated for effectively denying

the plaintiffs a remedy, and remanded the case to the Superior

Court.   Feeney III, 466 Mass. at 1003.

    On remand, the Superior Court granted the sellers' motion

to confirm the original arbitration award dismissing the

plaintiffs' claims.    Feeney vs. Dell Inc., Mass. Superior Ct.,

No. 2003-01158 (Middlesex County Oct. 24, 2013).     The Appeals

Court affirmed in a memorandum and order pursuant to its rule

1:28, 87 Mass. App. Ct. 1137 (2015), and this court denied the

plaintiffs' application for further appellate review in October,

2015, ending the putative class action litigation.

    While the putative class action was still ongoing, the

sellers brought abatement claims against the commissioner for

the taxes collected on the service contracts.     The sellers
                                                                   8


indicated in their abatement filings that they only sought

abatement in the event that the class action litigation resulted

in a judgment requiring the sellers to refund the taxes to their

customers.   The sellers' filings stated that if they prevailed

in the class action, they would withdraw their abatement

applications.

    The commissioner denied the sellers' abatement requests.

The sellers filed timely petitions with the board challenging

the commissioner's denial of their abatement requests, and the

petitions were consolidated.   In their petitions to the board,

the sellers again emphasized that they sought abatement to

protect against a possible judgment against them in the putative

class action litigation.

    Dedham Health filed motions to intervene in the sellers'

petitions before the board, arguing that it and "other similarly

situated customers" were the "real parties in interest" because

the customers were entitled to be refunded in the amount of any

abatement paid out to the sellers.   Dedham Health also asserted

that the commissioner prohibits customers from pursuing

abatement claims themselves "where the challenged 'tax' was paid

to, and remitted by, the seller."    However, Dedham Health did

not ask for class action certification before the board because,

as it conceded in its motion, "there is no procedure for

certifying a class action to the [board]."    The board granted
                                                                   9


Dedham Health's motions to intervene, concluding that it had

alleged "sufficient facts . . . to support its claims that the

parties may not be adequately representing Dedham Health's

interests" and that Dedham Health had "a substantial interest in

the subject matter of this litigation."    In allowing Dedham

Health's intervention, the board noted that it "in no way

extends or expands the limitations contained in G. L. c. 62C,

§ 37," the statute that sets forth the procedure for pursuing

abatement.

     The parties submitted a joint statement of facts and a

joint evidentiary record to the board.    The board ruled in

December, 2013, that, with certain exceptions, the transactions

did not fall within the statutory or regulatory framework for

taxation and thus the sellers had not been required to collect

the taxes at issue, and were therefore entitled to an abatement

of all such taxes they had remitted.     The board directed the

parties to "compute the amounts to be abated based on the

foregoing findings and rulings."   Because computing the

abatement amounts would be a complex and expensive task, the

board granted the sellers' motion to stay the board proceedings

until all appeals in the putative class action litigation had

been exhausted.9


     9
       As grounds for their motion to stay, the sellers cited the
significant expenses they would incur to compute the abatement
                                                                  10


     After the final dismissal of the putative class action in

favor of the sellers, the sellers withdrew all of their

petitions before the board.    Dedham Health filed a motion to

strike the sellers' withdrawals, arguing that allowing the

withdrawals would leave consumers without a forum to pursue a

tax refund.    In July, 2016, the board denied Dedham Health's

motion to strike.    Instead, the board ordered the proceedings

closed in light of the sellers' withdrawals, ruling that "any

pending or further motions and discovery are moot."    The board's

ruling did not include a rationale for its decision.    Dedham

Health did not request findings and a report, available pursuant

to G. L. c. 58A, § 13.10




amounts, particularly in light of the sellers' anticipation that
the Superior Court litigation would be resolved in their favor,
at which time they intended to withdraw their petitions.
     10
          The relevant portion of G. L. c. 58A, § 13, provides:

          "[T]he board shall make such findings and report
     thereon if so requested by either party within ten days of
     a decision without findings of fact and shall issue said
     findings within three months of the request . . . . Such
     report may, in the discretion of the board, contain an
     opinion in writing, in addition to the findings of fact and
     decision. If no party requests such findings and report,
     all parties shall be deemed to have waived all rights of
     appeal to the appeals court upon questions as to the
     admission or exclusion of evidence, or as to whether a
     finding was warranted by the evidence. . . . The decision
     of the board shall be final as to findings of fact.
     Failure to comply with the time limits, as outlined above,
     shall not affect the validity of the board's decision."
                                                                   11


     On appeal, Dedham Health argues that the board (1)

improperly denied Dedham Health's motion to strike the sellers'

withdrawals, (2) incorrectly ruled that the withdrawals rendered

all pending and future motions moot, and (3) violated Dedham

Health's right to due process by terminating the proceedings.

We examine each of these arguments in turn.

     2.   Discussion.   Pursuant to G. L. c. 58A, § 13, when the

board issues a final order without findings of fact, within ten

days a party may request that the board issue findings of fact

and a report.   By failing to request findings and a report here,

Dedham Health has "waived all rights of appeal . . . upon

questions as to the admission or exclusion of evidence, or as to

whether a finding was warranted by the evidence."    G. L. c. 58A,

§ 13.   See Assessors of Lynn v. Zayre Corp., 364 Mass. 335, 338

(1973).   Our review of the board's decision is therefore limited

to pure questions of law that were not otherwise waived.    See

Supermarkets Gen. Corp. v. Commissioner of Revenue, 402 Mass.

679, 681-682 (1988).    Thus, we can only rule in Dedham Health's

favor if the board erred as a matter of law.    See id.   We review

the board's conclusions of law de novo.    Regency Transp., Inc.

v. Commissioner of Revenue, 473 Mass. 459, 464 (2016).

"However, because the board is an agency charged with

administering the tax law and has 'expertise in tax matters,' .

. . we give weight to its interpretation of tax statutes, and
                                                                   12


will affirm . . . if [the board's] interpretation is reasonable"

(citations omitted).      AA Transp. Co. v. Commissioner of Revenue,

454 Mass. 114, 119 (2009).

       a.   Withdrawal.   Dedham Health contends that the board

erred in allowing the sellers to withdraw their petitions for

abatement.    Dedham Health interprets the board's final order as

being predicated on the board's assumption that it was required

as a matter of law to accept the sellers' withdrawals and thus

had no discretion to strike them.     On the basis of this

assumption, Dedham Health asserts that the board did have

discretion to strike the withdrawals, and that the board's

failure to recognize its own discretion constituted an error of

law.

       As discussed, the board's final order did not include an

explanation for its ruling.     Because Dedham Health chose not to

request findings of fact and a report, we do not know the basis

for the board's decision.     The board may have either (1) decided

it had discretion to accept or reject the withdrawals, and

chosen in the exercise of that discretion to accept the

withdrawals; or (2) decided it had to accept the withdrawals as

it lacked discretion to reject them as a matter of law.      We

cannot assume, in the absence of such findings and report, that

the board's decision was made on the latter basis, rather than

the former, as Dedham Health contends.     Having failed to request
                                                                   13


findings and a report, Dedham Health is left only with the

argument that the board's decision to accept the withdrawals was

improper as a matter of law in these circumstances.   See

Supermarkets Gen. Corp., 402 Mass. at 681-682.

    The board's rules expressly provide for withdrawals in

certain circumstances:

         "When notice of the settlement of a pending appeal is
    received by the clerk from either party, unless a
    withdrawal of the petition or agreement for decision is
    filed forthwith, the clerk shall inform both parties or
    their attorneys by mail that the appeal should be disposed
    of by filing a withdrawal of the petition or agreement for
    decision according to the terms of the settlement"
    (emphasis added).

831 Code Mass. Regs. § 1.21 (2007) (rule 1.21).   Thus, at least

where formal settlements are reached, the board expects that

withdrawals be filed to formally dispose of the petition.    While

no such formal settlement has been reached and the withdrawals

here were not filed pursuant to rule 1.21, the sellers

effectively accepted the tax liability in its entirety, and

thereby withdrew their petitions for abatement.   Rule 1.21 thus

provides support for the allowance and the board's acceptance of

the withdrawals in the instant matter.

    Prior decisions by this court have also recognized

taxpayers' ability to withdraw and the board's ability to accept

such withdrawals at various stages of administrative tax

proceedings.   See D'Errico v. Assessors of Woburn, 384 Mass.
                                                                  14


301, 309 (1981) ("plaintiff's remedy was to pursue his appeal

from the decision of the [board], but he withdrew that appeal.

This withdrawal . . . was perhaps an unfortunate tactical

decision but not one which this court can undo"); O'Brien v.

State Tax Comm'n, 339 Mass. 56, 61 (1959) ("Two of these [buses]

were garaged in Massachusetts but these are not here involved

for the applications for abatement of the excises with respect

to them have been withdrawn").   See also AA Transp. Co., 454

Mass. at 117 n.5.   Nor does Dedham Health argue otherwise; it

contends only that the board had the discretion to strike the

withdrawals, and did not recognize that it had such discretion.

As explained above, Dedham Health waived that argument by not

requesting findings and a report.

    Without such findings and a report, we cannot conclude as a

matter of law that the board abused its discretion in allowing

the sellers' withdrawals in these circumstances.   See O'Connor

v. Director of the Div. of Employment Sec., 384 Mass. 798, 799

(1981) ("In the absence of either such a request or an

indication from the District Court judge that he felt

constrained to dismiss the notice of appeal because he thought

such action to be mandatory, we conclude that the judge

considered the dismissal to be a matter of discretion and

further conclude that, if such dismissals are indeed

discretionary, the challenged dismissal would not have amounted
                                                                     15


to an abuse of discretion").     The proceedings had already gone

on for thirteen years at that point; the putative class action

lawsuit had ended in the sellers' favor; there were limited

amounts of money at stake for individual purchasers; and only

two plaintiffs had been identified in the class action, one of

whom had died in the interim.11

     Finally, the board's prior decision allowing Dedham Health

to intervene on its own behalf lends further support to the

board's discretion to accept the sellers' withdrawals.     As an

intervener, Dedham Health had rights separate from the sellers'

rights.   Thus, the sellers' withdrawal, by itself, did not leave

Dedham Health without a right or remedy.     We address those

rights below.

     b.   Independent right to abatement.    Dedham Health asserts

that, as an intervening party, it had an independent right to

continue to litigate the abatement proceedings even after the

sellers' withdrawal.     To determine Dedham Health's rights before

the board, we look both to the statutory scheme of the tax in

question and the rights the board provided Dedham Health as an

intervener.     Commissioner of Revenue v. A.W. Chesterton Co., 406


     11
       We also conclude that it would have been within the
board's discretion to deny the withdrawals, given the sellers'
over-all responsibility for collecting and abating the tax,
which, according to one filing by the commissioner, involved as
much as $50 million and as many as 7 million to 10 million
purchasers.
                                                                     16


Mass. 466, 467-468 (1990) (abatement is created by statute, so

board only has jurisdiction to extent prescribed by governing

statute).   This task is made somewhat more complicated by the

fact that the board never made an explicit finding as to whether

the taxes at issue were sales taxes, under the purview of G. L.

c. 64H, or use taxes, under the purview of G. L. c. 64I.12      We

conclude that in these circumstances both statutory schemes

place the legal responsibility for collecting and paying the

taxes and seeking abatement on the sellers, leaving only limited

rights to Dedham Health as an intervener.

     i.   Statutory rights.   In Massachusetts, sales and use

taxes are designed as "complementary components of a unitary

taxing program created to reach all transactions . . . in which

tangible personal property is sold inside or outside the

Commonwealth for storage, use, or other consumption within the

Commonwealth."   Boston Tow Boat Co. v. State Tax Comm'n, 366

Mass. 474, 476-477 (1974).    The sales tax is imposed on retail

purchases made inside the Commonwealth.    See G. L. c. 64H, § 2.

The use tax, "designed to prevent loss of sales tax revenue from

. . . out-of-State retail purchases," is imposed on retail

purchases made outside the Commonwealth that are stored, used,

or otherwise consumed in Massachusetts.    D & H Distrib. Co. v.

     12
       The interlocutory order of the board concluding that the
taxes were unlawful refers to the taxes collectively as "sales
and use taxes."
                                                                      17


Commissioner of Revenue, 477 Mass. 538, 540 (2017).       See G. L.

c. 64I, § 3.    The sales tax and the use tax are mutually

exclusive, and the tax rate is identical.        Regency Transp.,

Inc., 473 Mass. at 462.

    Vendors are responsible for collecting and remitting the

sales tax and therefore are the party entitled to seek

abatement.     See G. L. c. 64H, § 3; First Agricultural Nat'l Bank

of Berkshire County v. State Tax Comm'n, 353 Mass. 172, 179

(1967), rev'd on other grounds, 392 U.S. 339 (1968).       By

contrast, purchasers are generally responsible for payment of

the use tax.     See G. L. c. 64I, § 3.   However, in practice

purchasers "seldom remit use tax of their own volition, and are

not likely even to be aware of the requirement."       D & H Distrib.

Co., 477 Mass. at 540.     Rather, for applicable purchases outside

Massachusetts from a vendor who conducts business in

Massachusetts, the vendor is required to collect and remit the

use tax, as it would a sales tax.    See G. L. c. 64I, § 4.13       See

also G. L. c. 64H, § 3.     More specifically:


    13
         General Laws c. 64I, § 4, provides, in relevant part:

         "Every vendor engaged in business in the commonwealth
    and making sales of tangible personal property or services
    for storage, use or other consumption in the commonwealth
    not exempted under this chapter, shall at the time of
    making the sales, or, if the storage, use or other
    consumption of the tangible personal property or services
    is not then taxable hereunder, at the time the storage, use
    or other consumption becomes taxable, collect the tax from
                                                                   18


     "Vendors 'engaged in business in the commonwealth' who sell
     tangible personal property or services 'for storage, use or
     other consumption in the commonwealth' are required to
     collect the tax from the purchaser and give the purchaser a
     receipt, unless the 'storage, use, or other consumption' is
     not 'taxable' at the time of sale, in which case vendors
     are required to collect the tax when storage, use, or other
     consumption 'becomes taxable.'"

Town Fair Tire Ctrs., Inc. v. Commissioner of Revenue, 454 Mass.

601, 606 (2009), quoting G. L. c. 64I, § 4.    In such instances

where the vendor is required to collect the use tax, if the

vendor fails to do so, the tax is "owed by the vendor to the

commonwealth."   G. L. c. 64I, § 4.   See Town Fair Tire Ctrs.,

Inc., supra.14



     the purchaser and give the purchaser a receipt therefor in
     the manner and form prescribed by the commissioner. The
     tax required to be collected by the vendor shall constitute
     a debt owed by the vendor to the commonwealth. Such vendor
     shall collect from the purchaser the full amount of the tax
     imposed by this chapter, or an amount equal as nearly as
     possible or practicable to the average equivalent thereof;
     and such tax shall be a debt from the purchaser to the
     vendor, when so added to the sales price, and shall be
     recoverable at law in the same manner as other debts."
     14
       Under both tax schemes, when added to the sales price,
the amount taxed becomes a "debt from the purchaser to the
vendor." See G. L. c. 64H, § 3; G. L. c. 64I, § 4. Both
schemes include a "bad debt" provision, wherein "any vendor who
has paid to the commissioner a tax for a sale on credit is
'entitled' to reimbursement if the account 'is later determined
to be worthless.'" Household Retail Servs., Inc. v.
Commissioner of Revenue, 448 Mass. 226, 229 (2007). However,
this provision is a mere "statutory courtesy," as the vendor is
still legally responsible for paying the tax. Id. at 230. See
Continental-Hyannis Furniture Co. v. State Tax Comm'n, 366 Mass.
308, 309 (1974) (prior to enactment of bad debt provision,
vendor remained liable for sales tax even in instances where
purchaser did not tender payment for tax).
                                                                  19


     Thus, where the vendor has collected and remitted the use

tax, such that it mirrors the implementation of the sales tax,

the vendor is legally responsible for the tax and becomes the

party entitled to seek abatement.15

     Here, the taxes at issue were collected and remitted by the

sellers, not Dedham Health.    Therefore, regardless of whether

the taxes at issue were sales taxes or use taxes, the sellers

were the party statutorily responsible for the payment of the

tax and statutorily entitled to seek abatement, not Dedham

Health.    This is true even though the economic burden of the

taxes at issue were passed along to Dedham Health.   See First

Agricultural Nat'l Bank of Berkshire County, 353 Mass. at 180

("There is no necessary inconsistency between imposing the legal

incidence of a tax upon the vendor, yet recognizing a statutory

right in the vendor to shift the tax to the purchaser").

Placing the legal responsibility for the tax on vendors is also

in accord with the purpose of the tax scheme.    By making the

vendors responsible, the Legislature adopted "what it believed

to be the most efficacious method of ensuring the payment" of

the tax.   Baker Transport, Inc. v. State Tax Comm'n, 371 Mass.



     15
       When abatement is sought for either tax, the vendor who
collected the tax cannot, however, receive a refund until he or
she demonstrates that "he [or she] has repaid to the purchaser
the amount for which the application for refund is made." G. L.
c. 62C, § 37.
                                                                   20


872, 875-876 (1977) (Legislature's decision to require tax

payment prior to issuance or transfer of vehicle registration

was intended to ensure taxes paid on all taxable sales of motor

vehicles).   See First Agricultural Nat'l Bank of Berkshire

County, supra at 178 ("practical considerations necessitate its

collection and remission to the State by the vendor").     Because

the vendor is already collecting the tax from the purchasers,

placing the legal responsibility for collecting, paying, and

abating the tax on the vendor is a logical way of administering

the tax burden, such that the State does not have to pursue

individual purchasers for payment.

    ii.     Intervener rights.   Although Dedham Health was not

statutorily entitled to seek abatement here, the board allowed

Dedham Health to intervene in the proceedings before the board.

The sellers argue that such intervention violated the statutory

scheme.   See A.W. Chesterton Co., 406 Mass. at 467-468, quoting

Assessors of Boston v. Suffolk Law Sch., 295 Mass. 489, 492

(1936) ("Since the remedy by abatement is created by statute

[the board] has no jurisdiction to entertain proceedings for

relief by abatement begun at a later time or prosecuted in a

different manner than is prescribed by the statute").    We

disagree.

    The board properly allowed the intervention in accordance

with its own procedures.    Under 831 Code Mass. Regs. § 1.37
                                                                   21


(2007), the "practice and procedure before the [b]oard shall

conform to that heretofore prevailing in equity causes . . .

prior to the adoption of the Massachusetts Rules of Civil

Procedure."16   Prior to the adoption of the Massachusetts Rules

of Civil Procedure in 1973, an intervener needed a "substantial

interest in the subject matter of the original litigation" to

intervene in an equity claim.   See D.J. Doyle & Co. v. Darden,

328 Mass. 288, 290 (1952); Check v. Kaplan, 280 Mass. 170, 178

(1932).   Here, the board determined that "Dedham Health has

alleged sufficient facts relating to the subject matter of these

appeals to support its claims that the parties may not be

adequately representing [Dedham Health's] interests and

therefore [Dedham Health has] a substantial interest in the

subject matter of this litigation."   The board also correctly

cited controlling authority in its order allowing Dedham Health

to intervene.   See Check, supra.

     In these circumstances, where the board ordered an

abatement, but where the sellers indicated they would withdraw

from the abatement proceedings if the putative class action were

dismissed, allowing Dedham Health to intervene was appropriate.

The board correctly recognized that Dedham Health, as the

purchaser whose money was used to pay the tax, had a substantial

     16
       This provision of the Code of Massachusetts Regulations
also states that "substance and not form shall govern" in these
proceedings. 831 Code Mass. Regs. § 1.37 (2007).
                                                                  22


interest in the abatement and that the sellers had no intention

or incentive to protect that interest.   Intervention was an

appropriate means of protecting Dedham Health's substantial

interest, while also respecting the statutory structure and the

expertise of the board.   See Raytheon Co. v. Commissioner of

Revenue, 455 Mass. 334, 337 (2009); French v. Assessors of

Boston, 383 Mass. 481, 482 (1981) ("We have long recognized the

board's expertise in tax matters").

    As an intervener, Dedham Health became a party to the

abatement proceedings entitled to protect its interest in the

abatement.   See Spence v. Boston Edison Co., 390 Mass. 604, 611

(1983); American Hoechest Corp. v. Department of Pub. Utils.,

379 Mass. 408, 410 (1980); Check, 280 Mass. at 178.   Cf. Mass.

R. Civ. P. 24, 365 Mass. 769 (1974); Massachusetts Fed'n of

Teachers, AFT, AFL-CIO v. School Comm. of Chelsea, 409 Mass.

203, 205 (1991) (specifying conditions under which party has

right to intervention); May v. Commissioner of Internal Revenue,

553 F.2d 1207, 1208 (9th Cir. 1977) (per curiam) ("Intervention

in a proceeding before [the Tax Court] has been held to be

within the sound discretion of the Tax Court").   Indeed, the

board expressly rejected attempts to limit Dedham Health's role

to that of an amicus allowed only to brief and argue before the

board.
                                                                       23


    Both the sellers and the commissioner contend that Dedham

Health has no right to recover the taxes it paid, as an

intervener or otherwise, because Dedham Health did not file a

request for abatement on its own.    They make this argument

despite recognizing that such a request would have been denied

and was thus futile.   See Sullivan v. Brookline, 435 Mass. 353,

355 n.1 (200l) (where no administrative remedy exists, plaintiff

is "not subject to any exhaustion requirement"); Massachusetts

Bay Transp. Auth. v. Labor Relations Comm'n, 425 Mass. 253, 258

(1997) (exhaustion not required where it would be futile).

Indeed, the commissioner concedes that he would deny any such

application, as would the board, because neither the

commissioner nor the board recognizes a purchaser's right to

seek abatement independently.   In other words, Dedham Health's

other avenue of relief was to chase a separate ostensible

"remedy" that would be denied as soon as it was pursued.       We do

not find this argument compelling.

    The commissioner also suggests that Dedham Health could

instead sue the sellers, relying on G. L. c. 64H, § 3 (a).       The

commissioner's interpretation of G. L. c. 64H, § 3 (a), however,

runs contrary to the plain meaning of this provision.    General

Laws c. 64H, § 3 (a), requires the purchaser to reimburse the

vendor for the sales tax that the vendor is statutorily required

to remit to the Commonwealth.   It is designed to protect the
                                                                  24


vendor by imposing a reimbursement requirement on the purchaser.

As explained by the amicus:    "Nowhere does G. L. c. 64H, § [3

(a),] mention or even suggest any right of action by the

purchaser against the vendor."

    We recognize that Dedham Health's rights as an intervener

were limited.    It did not have the same statutory powers and

responsibilities as the sellers, and thus could not seek to

displace the sellers or play an equivalent role in the abatement

process.   The intervention order itself expressly stated that it

"in no way extends or expands the limitations contained in G. L.

c. 62C, § 37."    Dedham Health's rights were appropriately

limited to defending its own interest in the abatement that

applied to its own transactions.    It was not allowed or entitled

to step into the sellers' shoes or to intervene, as Dedham

Health suggests, as to the entirety of the sellers' tax

abatement claims.

    Although these rights were limited, we conclude that their

existence could not be entirely contingent on the sellers'

decision whether to continue the abatement process, once it had

begun.   In the instant cases, the board made this exact legal

error.   It decided Dedham Health had a substantial interest in

the abatement and a limited right to intervene to defend that

interest, but as soon as the sellers filed their withdrawals,

the board terminated the proceedings, eliminating both the
                                                                     25


interest and the right.    In these circumstances, where the board

had already found that the taxes were improperly imposed, it

could not simply terminate the proceedings and leave Dedham

Health without a remedy.     See Spence, 390 Mass. at 611; American

Hoechest Corp., 379 Mass. at 410; Check, 280 Mass. at 178.     Cf.

Mass. R. Civ. P. 24.     Dedham Health should have been permitted

to proceed after the sellers' withdrawal to recoup the tax

payment the board found had been unlawfully imposed on Dedham

Health.   We therefore conclude that the board erred as a matter

of law by instead choosing to terminate the proceedings after

the sellers' unilateral withdrawal.

    c.    Due process.    Dedham Health also contends that

terminating the abatement proceedings over its objection

violates its constitutional right not to be deprived of property

without due process of law.     Because we conclude that the board

erred as a matter of law where it allowed Dedham Health to

intervene and then took away that right and remedy when the

sellers filed their withdrawals, we need not address this

argument.   Cf. Commonwealth v. Disler, 451 Mass. 216, 228 (2008)

("It is, of course, our duty to construe statutes so as to avoid

such constitutional difficulties, if reasonable principles of

interpretation permit it [citation and quotations omitted]);

Textron Inc. v. Commissioner of Revenue, 435 Mass. 297, 307

(2001), cert. denied, 535 U.S. 986 (2002) ("As head of the
                                                              26


agency charged with administering the corporate excise tax

statutes, the commissioner has lawful discretion . . . to

interpret a statute in a manner that avoids potential

constitutional issues").

    3.   Conclusion.   For the reasons discussed above, we

reverse the final order of the board and remand for further

proceedings consistent with this opinion.

                                   So ordered.
