Chao Song & Yuling You v. Commissioner of Revenue (November 3, 2014)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



CHAO SONG & YULING YOU	     v.		COMMISSIONER OF REVENUE
		     		
Docket No. C304724					Promulgated:
								November 3, 2014


This is an appeal under the formal procedure pursuant to G.L. c. 58A, § 7 and G.L. c. 62C, § 39 from the refusal of the Commissioner of Revenue ("Commissioner" or "appellee") to abate personal income taxes assessed to Chao Song and Yuling You ("appellants") for the tax years ending December 31, 2001 and December 31, 2003 ("tax years at issue").
Chairman Hammond heard the Commissioner's Motion to Dismiss for Lack of Jurisdiction ("Motion to Dismiss"). Commissioners Scharaffa and Rose joined him in the decision for the appellee.
These findings of fact and report are issued pursuant to a request by the appellants under G.L. c. 58A, § 13 and 831 CMR 1.32.

Chao Song, pro se, for the appellants.

Derek W. Kelley, Esq. for the appellee.




FINDINGS OF FACT AND REPORT
On or about November 4, 2008, the appellants timely filed an Application for Abatement seeking an abatement of personal income taxes for the tax years at issue.  By Notice of Determination ("Determination Notice") dated April 6, 2009, the Commissioner notified the appellants that she had determined that the taxes in dispute had been properly assessed and that the appellants' abatement application was denied.  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  . . . within sixty (60) days of the date of this notice . . . .

(emphasis added).  The Determination Notice was sent to the appellants via first-class mail, postage prepaid, to the address listed on the appellants' tax returns.
The appellants did not file a petition with the Appellate Tax Board ("Board") until August 12, 2009, in an envelope postmarked August 11, 2009, more than four months after the Commissioner issued and mailed the Determination Notice.  
	The Commissioner filed a Motion to Dismiss the appellants' appeal for lack of jurisdiction on November 20, 2009, alleging that the appellants failed to file their appeal with the Board within the statutory time period prescribed by G.L. c. 62C, § 39.  On February 8, 2010, the Board held a hearing relating to the Commissioner's motion. Based on the arguments presented during the hearing and supporting memoranda and documents submitted by the parties, 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 abatement remedy is created by statute and, therefore, the Board has only that jurisdiction conferred on it by statute.  Commissioner of Revenue v. Pat's Super Market Inc., 387 Mass. 309, 311 (1982).  An appeal to the Board after the statutory period has expired is "'so repugnant to the procedural scheme, so destructive of its purposes, as to call for dismissal of the appeal.'" Sears Roebuck & Co. v. State Tax Commission, 370 Mass. 127, 130 (1976) (quoting  Shulte v. Director of the Div. of Employment Security, 369 Mass. 74, 79-80 (1975)).  Neither the courts nor this Board have the authority to create an exception to the time limit specified by statute.  Sears Roebuck, 370 Mass. at 130.  
In the present appeal, the appellants had until June 5, 2009 to file their Petition with the Board.  The appellants mailed their Petition on August 11, 2009, more than four months after the Commissioner's June 6, 2009 Determination Notice, 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 the 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

ATB 2014-791