John C. McBride v. Commissioner of Revenue (August 14, 2009)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


JOHN C. MCBRIDE	 		v.	COMMISSIONER OF REVENUE


Docket No. C298788				Promulgated:
        						August 14, 2009


	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 personal income tax assessed to the appellant, John C. McBride ("appellant") for tax years 1998 through 2005 ("tax years in dispute").  
	Chairman Hammond heard the appellee's Motion to Dismiss.  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 requests by the appellant and appellee under G.L. c. 58A, § 13 and 831 CMR 1.32

	John C. McBride, pro se, for the appellant.

	Benson V. Solivan, Esq., for the appellee.

FINDINGS OF FACT AND REPORT
On November 20, 2008, the Commissioner filed a Motion to Dismiss the appellant's appeal for lack of jurisdiction.  As grounds for her motion, the Commissioner alleged that the appellant failed to file his appeal with the Appellate Tax Board ("Board") within the sixty-day statutory time period under G.L. c. 62C, § 39.
On December 15, 2008, the Board held a hearing on the Commissioner's motion.  On the basis of the affidavits and other documents filed by the parties in connection with the motion, the Board made the following findings of fact.
The appellant, a resident of Massachusetts, filed personal income tax returns for each of the tax years in dispute in late 2006, beyond their statutory due dates.  On November 27, 2007, the appellant filed an Application for Abatement of personal income taxes, as well as interest and penalties for late-filed returns and late-paid taxes, for the tax years in dispute.  The Commissioner's Office of Appeals held a hearing on appellant's abatement application on June 3, 2008.
On June 19, 2008, the Office of Appeals sent the appellant a letter to his home address, 12 Rolleston Road, Marblehead, MA 01945, indicating that the appellant's request for abatement would be denied.  The letter was sent to the same address that the appellant provided to the Commissioner on his abatement application.  The appellant conceded that he received the Office of Appeals letter shortly after June 19, 2008.
In addition to advising the appellant of the Office of Appeals' determination that the appellant's abatement application should be denied, the June 19, 2008 letter specifically informed the appellant that:
[the Office of Appeals] is returning this matter to the Customer Service Bureau for disposition consistent with our determination.  This letter does not constitute a Notice of Abatement Denial; the Customer Service Bureau will issue such a Notice.  If the Taxpayers continue to disagree with the assessment, then the Taxpayers may file a petition with the Appellate Tax Board within 60 days of the date of such Notice of Abatement Denial.  [emphasis added].

On June 26, 2008, less than one week after receiving the Office of Appeals letter, the appellant changed his mailing address with the Marblehead post office and had his mailed forwarded to his P.O. Box in Edgartown, MA, where he also owned a house.  The appellant testified that he had a P.O. Box in Edgartown for three years and experienced repeated problems receiving mail at the Edgartown address.  Despite the alleged mail problems in Edgartown and his notification that he would have 60 days from the forthcoming denial notice to file an appeal, the appellant nevertheless had his address changed to his Edgartown P.O. Box after receiving the June 19th Office of Appeals letter.  
On June 27, 2008, the Commissioner denied the appellant's abatement application.  The appellant testified that he never received the abatement denial at his Edgartown P.O. Box.
The Commissioner submitted an affidavit by Robert O'Neill, Chief of the Customer Service Bureau of the Department of Revenue.  Mr. O'Neill explained that the Department of Revenue's regular course of business is to enter denials of abatement applications into the automated MASSTAX computer system.  Once a denial is entered into the program, it automatically generates and issues a corresponding notice to the taxpayer.  The automated denial letter is dated and addressed to the taxpayer at the address listed in the Department's records.  The notices are sent out by first-class mail, postage prepaid.  If a notice is addressed to an incorrect or invalid address, the notice is returned to the Department and a notation is made in the MASSTAX system to indicate that the current address for the taxpayer is no longer correct.  
Upon reviewing the MASSTAX records regarding the appellant, Mr. O'Neill found that the appellant's abatement application was denied on June 27, 2008 and that a denial notice was mailed to the appellant's Marblehead address on that date.  There was no indication in the MASSTAX system that the abatement denial notice was ever returned to the Department of Revenue. 
On September 19, 2008, the Commissioner sent the appellant a notice of failure to file personal income tax for tax years 2006 and 2007.  On that same date, the Commissioner sent the appellant a notice of intent to seize based on the appellant's failure to pay $159,121.12 in tax, interest, and penalties for the tax years at issue.  The notice of intent to seize indicated that payment of $159,121.12 was due on September 29, 2008.  On October 2, 2008, the appellant filed his appeal with this Board.  
At the hearing of the Commissioner's motion to dismiss, the Commissioner argued that the appellant filed his appeal with the Board only to delay collection after the taxpayer received the notice of intent to seize.  The appellant maintained that he never received the denial notice from the Commissioner and that he learned of the denial only when the motion to dismiss was filed.  
In support of his claim, the appellant offered only his own unsupported affidavit in which he claimed that his failure to receive the denial notice was due to poor mail service.  The appellant testified that the Edgartown post office had a reputation in the community for being unreliable, but provided no supporting evidence other than his opinion and one instance when his insurance company reissued a check in the amount of $29.00 because he claimed not to have received the original check mailed to his Edgartown address.  
On the basis of all of the testimony and documentary evidence submitted at the hearing, the Board found and ruled that the appellant failed to meet his burden of establishing by credible evidence that he did not receive the denial notice.  Furthermore, the Board found that the last date for filing the appeal was August 26, 2008 and that the petition was received on October 2, 2008, 37 days past the statutory deadline.  Therefore, the Board ruled that it lacked jurisdiction over the instant appeal and entered a decision for the appellee.   

OPINION
General Laws c. 62C, § 39, provides in relevant part that: 
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.

In the present appeal, the date of notice of the Commissioner's decision was June 27, 2008.  Sixty days from that date is August 26, 2008.  The appellant filed his petition with the Board on October 2, 2008, thirty-seven days after the August 26, 2008 deadline expired.  The appellant's only argument to justify the late filing of his appeal was that substandard mail service at the Edgartown Post Office resulted in his failure to receive the Commissioner's denial notice.   
In SCA Disposal Services of New England v. State Tax Commission, 375 Mass. 338 (1978), the Supreme Judicial Court held that where a taxpayer can prove that a notice was never received, proof of mere mailing of the notice by the Commissioner is not sufficient to trigger the statute of limitations.  Id. at 341.  However, in that case, the Board specifically found that the appellant had not received the notice of abatement denial.  Id. at 340.  The Board's finding was based on evidence provided by the corporate taxpayer, through its employees, officers, and attorneys, that the appellant never received a denial notice.  SCA Disposal Services of New England, Inc. v. State Tax Commission, Mass. ATB Findings of Fact and Reports, 1997-87, 89. 
In the instant case, however, the appellant did not meet his burden of proving that he did not receive the denial notice.  Where, as here, the Commissioner has complied with the statutory requirement of mailing a notice to the appellant's address "as it appears in the records of the commissioner" (see G.L. c. 62C, § 71), the burden of proving that a notice was not received lies with the appellant.  SCA Disposal Services, 375 Mass. at 341-42.  Here, the Commissioner's records in the automated MASSTAX system indicate that notice was sent to the appellant's Marblehead address on June 27, 2008, the same address that appeared in the Commissioner's records and used by the appellant on his abatement application.  There is no evidence that the notice was returned to the Commissioner as undeliverable.  The only evidence that the appellant provided in support of his claim is his own unsupported affidavit, in which he claimed that the Edgartown post office is unreliable, as well as one reissued insurance check from his insurance company.  The Board found that appellant's claimed lack of receipt of the denial notice was not credible.
The Board has rejected similar attempts by taxpayers to establish non-receipt of a notice.  See Joseph Dicato v. Commissioner of Revenue, Mass. ATB Findings of Fact and Report, 2007-47, 51-52 (unsupported affidavit claiming late receipt of notice does not satisfy burden of proof where the evidence of record established timely receipt of notice); Morrill Equipment Sales v. Commissioner of Revenue, Mass. ATB Findings of Fact and Reports 1996-181 (appellant's unsupported affidavit does not satisfy burden of proof); Watjus Electric, Inc. v. Commissioner of Revenue, Mass. ATB Findings of Fact and Reports 1993-139, 143 (burden of proof is not satisfied where appellant did not introduce any documentary evidence, such as an envelope containing a postmark, supporting its allegation that the notice of denial was received late).   
Further undercutting the appellant's credibility is the fact that he changed his mailing address, to a place he said was notorious for losing mail, just days after receiving the Office of Appeals letter indicating that the denial notice that would trigger his 60-day appeal period would be forthcoming.  In addition, there is no evidence that the appellant made any attempt to notify the Department of Revenue of his change of address.
In Alfred A. Peterson v. Commissioner of Revenue, Mass. ATB Findings of Fact and Reports 1994-305, aff'd, 39 Mass. App. Ct. 1111 (1995), the taxpayer claimed that poor mail service in his Florida community resulted in a failure to receive timely notice.  Id. at 1994-309.  However, the taxpayer had arranged for his neighbor to collect his mail while he was traveling and the Board found that it was just as likely that his neighbor simply held on to the mail too long.  Id. at 1994-309.  Furthermore, despite being advised by his counsel as to the importance of the notice document, the taxpayer took no affirmative steps to ensure that he received the notice.  Id. at 1994-309, 310.   As a result, the Board in Peterson found that the alleged failure to receive the notice of denial was due to the taxpayer's own neglect.  Id. at 1994-310.
Although there may be circumstances where a delay in receipt of a denial is both beyond the control of a taxpayer and so great that additional time to file an appeal is required under SCA Disposal, such a result is not appropriate where, as here, the delay is occasioned by the taxpayer's own actions or inactions.  

Id. at 1994-313.  Thus, the Board in Peterson found that it did not have jurisdiction over the appeal.  Id. at 1994-313, 314.  
"Since the remedy for abatement is created by statute, the Board . . . has no jurisdiction to entertain proceedings for relief by abatement begun at a later time or prosecuted in a different manner than is prescribed by the statute."  Assessors of Boston v. Suffolk Law School, 295 Mass. 489, 492 (Mass. 1936).  "The Board has consistently held that it has no jurisdiction to consider an appeal filed later than prescribed by statute."  Watjus Electric, Mass. ATB Findings of Fact and Reports 1993 at 142 (citing Perry v. Commissioner of Revenue, Mass. ATB Findings of Fact and Reports 1990-262, 263-64).  Neither the courts nor the Board has the authority to create an exception to the time limit prescribed by G.L. c. 62C § 39.  Sears Roebuck & Co. v. State Tax Commission, 370 Mass. 127, 130 (1976).   

The Board found and ruled that the appellant failed to meet his burden of establishing that he did not receive the notice of denial.  Furthermore, the Board found that the appellant did not file his petition with the Board until after the statutory deadline had expired.  Accordingly, the Board allowed the Commissioner's Motion to Dismiss the appellant's appeal for lack of jurisdiction and entered a decision for the appellee.  

APPELLATE TAX BOARD


					By:				______	
					   Thomas W. Hammond, Chairman




A true copy:


Attest: _____________________
	    Clerk of the Board

	ATB 2009-751