Joseph J. Dolliver v. Commissioner of Revenue (June 12, 2007)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD




JOSEPH  J. DOLLIVER		   v.	COMMISSIONER OF REVENUE

Docket No. C283373				Promulgated:
							June 12, 2007


	This is an appeal filed under the formal procedure pursuant to G.L. c. 62, § 39, from the refusal of the appellee to abate withholding taxes assessed under G.L. c. 62 and 62C.
	Chairman Hammond heard the appellee's Motion to Dismiss and Commissioners Scharaffa, Egan, Rose and Mulhern 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 appellant under G.L. c. 58A, § 13 and 831 CMR 1.32.  

	Joseph J. Dolliver, pro se, for the appellant.
	Bensen V. Solivan, Esq., for the appellee.



FINDINGS OF FACT AND REPORT
	The appellant, Joseph J. Dolliver ("appellant"), was the owner of a construction company, which conducted business for the first time starting in 2001.  The company registered with the appellee Commissioner of Revenue ("Commissioner") for purposes of withholding taxes.  The Commissioner subsequently sent Notices of Failure to File to the appellant for the periods ended December 12, 2001, March 31, 2002, April 30, 2002, May 31, 2002 and June 30, 2002 ("periods at issue").  On October 23, 2003, the appellant was sent a Notice of Intention to Assess Withholding Tax for the periods at issue.  On December 16, 2003, the appellant filed the returns for the periods at issue along with an Application for Abatement.  On June 3, 2004, the Commissioner issued a Notice of Abatement Determination that granted a partial abatement and denied in part the Abatement Application.  On July 29, 2005, the appellant filed a second Application for Abatement, which the Commissioner denied by notice dated September 17, 2005 because the issues raised in the second application had "already been considered in a prior claim."  On April 28, 2006, the appellant filed his petition with the Appellate Tax Board ("Board").
	The Commissioner filed a Motion the Dismiss appellant's appeal on the ground that the appellant's appeal was filed more than sixty days after the denial of his Application for Abatement.  At the hearing of the Commissioner's Motion to Dismiss, the appellant claimed that he did not file the original Application for Abatement.  The appellant claimed that the initial application for abatement was filed by his bookkeeper who was not authorized to do so.  The bookkeeper was, however, apparently authorized to file the requested withholding tax returns that were filed with the abatement application.  Even assuming, arguendo, that the first application was a nullity, the appeal from the appellee's September 17, 2005 denial was well beyond the applicable statute of limitations; the appellant filed his petition with the Board on April 28, 2006, 163 days beyond the sixty-day limitation period for filing an appeal with the Board from the Commissioner's denial of an abatement application.
Further, although the appellant also argued that claims for later periods raised at hearings before the appellee should somehow revive the Board's jurisdiction over the periods at issue in these appeals, these later periods were not the subject of the September 17, 2005 Notice of Determination and are therefore not before the Board.  
Accordingly, the Board allowed the appellee's Motion to Dismiss for lack of jurisdiction and issued a decision for the appellee in this appeal.

OPINION
	This appeal presents the issue of whether the Board has jurisdiction to hear and decide an appeal arising from the denial of an abatement claim where the petition was filed with this Board 163 days after the sixty-day filing period under G.L. c. 62C, § 39.  Section 39 provides in pertinent 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 date of notice of the decision of the commissioner . . . 

(emphasis added).
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).  The Board has no jurisdiction over an appeal filed at a time later than that dictated by statute.  Id.; see also Peterson v. Commissioner of Revenue, ATB Findings of Fact and Reports 1994-305.  The Board has consistently held that it has no jurisdiction to consider an appeal filed later than the period authorized by G.L. c. 62C, § 39.  Watjus Electric Inc. v. Commissioner of Revenue, ATB Findings of Fact and Reports 1993-139; Perry v. Commissioner of Revenue, 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); and Peterson, ATB Findings of Fact and Reports 1994-305.
	On the basis of the record in this appeal, the Board found that the appellant's petition was filed with the Board 223 days after the appellee's September 17, 2005 Notice of Abatement Determination.  
	The Board's decision allowing the Commissioner's Motion to Dismiss the appeal for lack of jurisdiction was promulgated on March 5, 2007.   
				     APPELLATE TAX BOARD



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


A true copy,
Attest:_____________________________
  	     Assistant Clerk of the Board

ATB 2007-413