Galaxy Internet Services, Inc. v. Commissioner of Revenue (July 18, 2008)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



GALAXY INTERNET SERVICES,    v.	 COMMISSIONER OF REVENUE INC.

Docket No. C293915				 Promulgated:
	                    July 18, 2008

	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 Commissioner of Revenue ("Commissioner" or "appellee") to abate sales and use taxes on internet access for the periods beginning March 1, 2000 and ending March 31, 2004.
	Chairman Hammond heard the appellee's Motion to Dismiss the appeal for lack of jurisdiction, and Commissioners Scharaffa, Egan, Rose, and Mulhern joined him in a decision for the appellee granting the Motion to Dismiss.
	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.


	Robert Carp, pro se, for the appellant.

	Timothy R. Stille, Esq., for the appellee.


FINDINGS OF FACT AND REPORT
	On August 29, 2006, Galaxy Internet Services, Inc. ("appellant") filed an Application for Abatement of sales and use tax assessed for the periods beginning March 1, 2000, and ending March 31, 2004.  
By Notice of Abatement Determination dated July 19, 2007 ("Determination Notice"), the Commissioner notified the appellant that he had denied its 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).

The appellant filed a Petition Under Formal Procedure with the Appellate Tax Board ("Board") on January 10, 2008, nearly five months after the date of the Determination Notice.
	The Commissioner filed a Motion to Dismiss the appellant's appeal on the ground that it was not timely because it was filed with the Board more than 60 days after the date of the Determination Notice.  Since the appellant's Petition was 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, 313; Watjus Electric Inc. v. Commissioner of Revenue, Mass. ATB Findings of Fact and Reports 1993-139, 142; Perry v. Commissioner of Revenue, Mass. ATB Findings of Fact and Reports 1990-262, 263 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 at 1994-313.
	In the present appeal, the appellant had 60 days from the July 19, 2007 Determination Notice, or until September 17, 2007 to file its appeal with the Board.  The appellant filed its appeal with the Board on January 10, 2008, 175 days after the Commissioner's July 19, 2007 Determination Notice, and well beyond the 60-day time limit specified by G.L. c. 62C, § 39.  
Because the appellant did not comply with the statutory deadline for filing its 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, appellant was in no way prejudiced by this inaccuracy.  Appellant filed its appeal with the Board using the correct address. 

ATB 2008-925