Sergio and Anabela Piedra v. Commissioner of Revenue (October 24, 2007)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



SERGIO AND ANABELA PIEDRA	v.	COMMISSIONER OF REVENUE


Docket No. C288204				Promulgated:
							October 24, 2007

	This is an appeal filed under the formal procedure pursuant to G.L. c. 58A, § 7 and G.L. c. 62C, § 39 from the refusal of the appellee to abate personal income taxes for tax years 1999 and 2000.
	Chairman Hammond heard the appellee's Motion to Dismiss, and Commissioners Scharaffa, Egan, and Rose joined him in a decision for the appellee granting the Motion to Dismiss the appeal for lack of jurisdiction.
	These findings of fact and report are made pursuant to a request by the appellants under G.L. c. 58A, § 13 and 831 CMR 1.32.


	Sergio Piedra, pro se, for the appellants.

	Mireille T. Eastman, Esq., and Arthur M. Zontini, Esq., for the appellee.





FINDINGS OF FACT AND REPORT
	Appellants, Sergio and Anabela Piedra, filed their 1999 and 2000 tax returns on February 4, 2003, and March 30, 2005, respectively.  On April 9, 2006, the Commissioner of Revenue ("Commissioner") sent appellants a Notice of Intention to Assess additional taxes for tax years 1999 and 2000 ("tax years at issue").  By Notice of Assessment dated September 10, 2006, the Commissioner notified appellants that he had assessed additional tax in the amount of $30,614.44, including interest and penalties, for the tax years at issue.  Appellants filed an Application for Abatement on September 19, 2006.  
By a Notice of Abatement Determination dated and mailed to appellants on October 25, 2006 ("Determination Notice"), the Commissioner notified appellants that he had denied their abatement application.  The Determination Notice stated in relevant part that: 
This determination is final.  You may appeal this decision to the Appellate Tax Board . . . in accordance with the provisions of Massachusetts General Laws, Chapter 62C, § 39. If you choose to file an appeal with the Board, your petition must be received in the Board's offices at  100  Cambridge Street, Suite Two,  Boston, MA 02114 within sixty (60) days of the date of this notice . . . .
(emphasis added).

Appellants responded by sending a letter dated November 16, 2006, addressed to Teresa O'Brien-Horan, the Deputy Commissioner who signed the Determination Notice. In their letter, appellants acknowledged receipt of the Commissioner's Determination Notice and stated:
Hereby, I would like to go further with this action to determine my tax liability.  As you are aware of my rights, I have sixty days from the day of your notice.  I think in light how [sic] my case has been handled and conducted, it is better for the TAX COURT to determine my Tax Liability.

Appellants did not file a Petition with the Appellate Tax Board ("Board") until April 24, 2007, in an envelope postmarked April 23, 2007, nearly six months after the Commissioner sent them notice of the denial of their abatement application.
	The Commissioner filed a Motion to Dismiss appellants' appeal on the ground that it was filed with the Board more than 60 days after the date of the Commissioner's Notice of Abatement Determination.  Since appellants' petition was mailed and filed with the Board well beyond the 60-day appeal period, the Board allowed the Commissioner's Motion to Dismiss for lack of jurisdiction.  Accordingly, the Board issued a decision for the appellee in this appeal.

OPINION
	General Laws c. 62C, § 39 provides in relevant part:
Any person aggrieved by the refusal of the commissioner to abate a tax, in whole or in part, may appeal therefrom, within sixty days after the notice of the decision of the commissioner . . . by filing a petition with the clerk of the appellate tax board.

The Board has no jurisdiction to consider an appeal filed at a time later than that dictated by the statute.  Commissioner of Revenue v. Pat's Super Market Inc., 387 Mass. 309, 311 (1982); see also Peterson v. Commissioner of Revenue, Mass. ATB Findings of Fact and Reports 1994-305; Watjus Electric Inc. v. Commissioner of Revenue, Mass. ATB Findings of Fact and Reports 1993-139; Perry v. Commissioner of Revenue, Mass. ATB Findings of Fact and Reports 1990-262 and cases cited therein.  Neither the courts nor this Board have the authority to create an exception to the time limit specified by statute.  Sears Roebuck & Co. v. State Tax Commission, 370 Mass. 127, 130 (1976); Peterson, Mass. ATB Findings of Fact and Reports 1994-305.
	In the present appeal, appellants had until December 26, 2006 to file their Petition with the Board.  They neither mailed nor filed their Petition with the Board on or before that date.  See G.L. c. 58A, § 7 (when a petition is received by the Board after the specified time limit, the date of the postmark or other substantiating mark permitted by Rule of the Board shall be considered the relevant filing date).  Appellants mailed their Petition on April 23, 2007, 180 days after the Commissioner's October 25, 2006 Notice of Abatement Determination, and well beyond the 60-day time limit specified by G.L. c. 62C, § 39.  Further, the Commissioner's Notice of Abatement Determination explicitly informed appellants of where to file their Petition and the statutory time limit for doing so.  Since appellants did not comply with the statutory deadline for filing their appeal, the Board allowed the Commissioner's Motion to Dismiss for lack of jurisdiction and issued a decision for the appellee in this appeal.

					  THE APPELLATE TAX BOARD

By: ______________________________________
                         Thomas W. Hammond, Jr., Chairman




A true copy,

Attest:  ___________________________________
               Clerk of the Board

 Although the Board's address is Suite 200, not Suite Two as listed in the Determination Notice, the appellants were in no way prejudiced by this inaccuracy.  There is no indication in the record that appellants attempted to file an appeal with the Board using the incorrect address listed in the Determination Notice.  Rather, as discussed infra, appellants responded to the Determination Notice by: 1) writing back to the Deputy Commissioner who signed the Determination Notice; and 2) filing an appeal with the Board almost 6 months after the date of the Determination Notice, which the Board received within a day of mailing despite appellants' failure to include a suite number in the Board's address. 
 Appellants did not include a suite number for the Board on the envelope, which was addressed as follows:
	The Commonwealth of Massachusetts
	Appellate Tax Board
	100 Cambridge, MA 02114
	Boston
Despite the lack of a suite number and the inversion of information on the third and fourth line of the address, the Board received the petition one day after it was postmarked.
 Sixty days from the October 25, 2006 Notice of Abatement Determination was Sunday, December 24, 2006.  The following day, December 25, 2006, was a legal holiday.  When the last day of a filing period falls on a Saturday, Sunday, or holiday, the due date is extended by operation of law to the following business day.  See G.L. c. 4, § 9.  Accordingly, appellants' last day for filing their Petition with the Board was Tuesday, December 26, 2006.  

ATB 2007-1226