Desh, Inc. v. Commissioner of Revenue.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-847

DESH, INC.1

vs.

COMMISSIONER OF REVENUE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On October 18, 2022, the Commissioner of Revenue

(commissioner) mailed three letters to Desh, Inc. (Desh)

suspending Desh's licenses to sell tobacco and electronic

nicotine delivery systems for ninety days for failure to pay

excise taxes. The letters were sent by certified mail, without

a return receipt, through the United States Postal Service

(USPS), to the retail store (which is also Desh's principal

place of business).2 On November 3, 2022, Desh mailed a petition

to the Appellate Tax Board (board) challenging the suspension.

1 Doing business as Bob's Market.

2The retail location and principal place of business of
Desh is 163 W. Wyoming Avenue, Melrose, Massachusetts.
Under G. L. c. 62C, § 68 (§ 68), the petition must be filed

"within ten days after written notice of the decision has been

mailed or delivered to [Desh]." The commissioner filed a motion

to dismiss the petition, contending that it was not timely filed

and therefore the board did not have jurisdiction to hear the

appeal.3 Desh filed an opposition to the amended motion to

dismiss questioning, among other things, the adequacy of the

proof of delivery of the suspension letters.4 The board found

that the suspension letters were delivered on October 20, 2022,

and therefore Desh's petition was untimely. Concluding that it

lacked jurisdiction to hear the petition, the board dismissed

it. Desh filed a motion for reconsideration which the

commissioner opposed. The board denied the motion; this appeal

followed. We affirm.

Our review of a decision of the board is well settled. "We

will not modify or reverse a decision of the board if the

decision is based on both substantial evidence and a correct

3After the commissioner filed its motion to dismiss, the
board held a hearing. Following that hearing, the hearing
examiner allowed the commissioner to file an amended motion to
dismiss which included an affidavit from Vincent Piccolo, a tax
examiner employed by the commissioner who sent the suspension
letters to Desh.

4We note that the suspension letters informed Desh that any
appeal must be filed within ten days after receipt of the
suspension letter, which conflicts with the provisions of § 68.
The commissioner should take care to issue notices consistent
with the requirements of the statute at issue.

2
application of the law." Boston Professional Hockey Ass'n, Inc.

v. Commissioner of Revenue, 443 Mass. 276, 285 (2005). In doing

so, "we recognize the [tax] board's expertise in the

administration of tax statutes and give weight to the [tax]

board's interpretations" (citation omitted). Adams v. Assessors

of Westport, 76 Mass. App. Ct. 180, 183 (2010). "We review

conclusions of law, including questions of statutory

construction, de novo" (citation omitted). Shrine of Our Lady

of La Salette Inc. v. Assessors of Attleboro, 476 Mass. 690, 696

(2017).

Desh contends that the commissioner failed to meet its

burden to establish the delivery and receipt of the suspension

letters. We note that under § 68, timeliness of Desh's petition

is calculated as ten days from either the date the suspension

letters were mailed or when they were delivered (emphasis

added). There is no contest about the date of mailing. The

record evidence established that Vincent Piccolo, a tax

examiner, responsible for, among other things, reviewing and

mailing suspension letters to tobacco retail license holders,

mailed the suspension letters to Desh on October 18, 2022. In

accordance with the commission's procedures, Piccolo sent the

letters certified mail with tracking that included a twenty-two

digit bar code identifier and delivery confirmation, but without

return receipts. After receiving the bar code identifiers,

3
Piccolo uploaded and entered this information into the

Department of Revenue computer system. The bar code identifiers

state that the three letters were "delivered, left with

individual" on October 20, 2022, at 12:05 P.M. (USPS tracking

information).5 There was no evidence of a signed receipt for the

delivery of the suspension letters.

Desh argues that the board erred in finding that the

suspension letters were delivered on October 20, 2022, because

the USPS tracking information was hearsay and not properly

authenticated. Additionally, Desh contends that (1) the

suspension letters were "not given to an officer or agent or

person in charge of the corporation," (2) both owners and

managers were away from the store when the suspension letters

were delivered, and (3) once found, its president immediately

called the board, attempted to hand deliver the petition, and

mailed the petition within "2-3 days after [receiving] the

[commissioner's] suspension notices, but well within the ten day

limit."

While we are sympathetic to Desh's argument and note the

amount of taxpayer resources expended on this appeal (as

compared to the resources needed to conduct a hearing on the

5 Desh's president confirmed that the suspension letters
were delivered to the correct address but contests the date that
they were delivered.

4
petition), we are constrained to affirm. Using the date that

the suspension letters were mailed, the petition was untimely.

See G. L. c. 62C, § 68. On this basis alone, we could affirm

the board's decision. Noting that the statute provides for

either the date of mailing or the date of delivery as the

operative date for determining the petition's timeliness, we

turn to Desh's claim that the commissioner failed to prove when

the suspension letters were delivered. Before doing so, we

observe that if the commissioner had used certified mail, with a

return receipt, there would likely be no argument about when the

suspension letters were delivered.6 However, the commissioner's

procedures do not mandate such a practice. To determine the

date of receipt, the board used the so-called postmark rule

which provides that "[t]he date of the postmark on the sender's

receipt is treated as the postmark date . . . ." 831 Code Mass.

Regs. § 1.13(1)(b) (2007). It was therefore not error for the

board to apply the postmark rule and find, using the USPS

tracking information, that the suspension letters were delivered

on October 20, 2022.7

6 The commissioner should reconsider this practice,
particularly where here the record suggests that the USPS "does
not warrant or represent that the information [from its website]
is accurate or reliable."

7 Applying the postmark rule, the commissioner found that
Desh delivered its petition to the board on November 3, 2022
(the date of the USPS postmark), and not the date the petition

5
To the extent that Desh argues that the board erred in

considering the USPS tracking information because it is hearsay,

we are not persuaded. Passing on the question of whether USPS

tracking information is admissible as a business record, see

Beal Bank, SSB v. Eurich, 444 Mass. 813, 815 (2005), "in the

context of administrative proceedings, hearsay evidence bearing

indicia of reliability constitutes admissible and substantial

evidence." Doe, Sex Offender Registry Bd. No. 10800 v. Sex

Offender Registry Bd., 459 Mass. 603, 638 (2011). See also Kyle

K. v. Department of Children and Families, 103 Mass. App. Ct.

452, 460 (2023).

The board properly concluded that Desh's petition was

untimely and therefore it did not have jurisdiction to consider

was received by the board (November 4, 2022). Desh would have
benefitted from this rule if the petition was otherwise timely.

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it. See Commissioner of Revenue v. A.W. Chesterton Co., 406

Mass. 466, 467 (1990).8,9

Decision of Appellate Tax
Board affirmed.

Order denying motion for
reconsideration affirmed.

By the Court (Meade, Blake &
Brennan, JJ.10),

Clerk

Entered: June 25, 2024.

8Desh also argues that service was inadequate under Mass.
R. Civ. P. 4 (d) (2), as amended, 370 Mass. 918 (1976). This
argument fails because the board is not subject to the Rules of
Civil Procedure. See 831 Code Mass. Regs. § 1.37 (2007). See
also WorldWide TechServs., LLC v. Commissioner of Revenue, 479
Mass. 20, 31-32 (2018) (board's practices and procedures to
conform to those applied in equity cases before adoption of
Rules of Civil Procedure).

9For the reasons herein, the order denying the motion for
reconsideration is affirmed.

10 The panelists are listed in order of seniority.

7