MacDonald, Brendan O. v. Commissioner of Revenue (December 31,2025)

COMMONWEALTH OF MASSACHUSETTS
APPELLATE TAX BOARD
BRENDAN O. MACDONALD 	v. 	COMMISSIONER OF REVENUE
Docket No. C349351 	Promulgated:
December 31, 2025
This is an appeal filed under the formal procedure pursuant to G.L. c. 58A, § 7 and
G.L. c. 62C, § 39(c) from the refusal of the Commissioner of Revenue (“Commissioner”
or “appellee”) to grant an abatement of personal income tax assessed to Brendan O.
MacDonald (“appellant”) for calendar year 2018 (“tax year at issue”).
Chairman DeFrancisco heard the appellee’s Motion to Dismiss for Lack of
Jurisdiction (“Motion to Dismiss”). Commissioners Good, Elliott, Metzer, and Bernier
joined him in the decision for the appellee, allowing the Motion to Dismiss.
These findings of fact and report are made at the request of the appellant pursuant
to G.L. c. 58A, § 13 and 831 CMR 1.34.
Brendan O. MacDonald, pro se, for the appellant.
Wendi Safran, Esq., for the appellee.
FINDINGS OF FACT AND REPORT
Based on the testimony and evidence presented at the hearing on the Motion to
Dismiss, the Appellate Tax Board (“Board”) made the following findings of fact.
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On March 10, 2019, the appellant filed a Form 1 Massachusetts Resident Income
Tax Return for the tax year at issue (“2018 Form 1”), reporting $236 in personal income
tax. The address for the appellant on the 2018 Form 1 was 5310 English Oak Drive in
Killeen, Texas (“Texas address”).
On December 20, 2021, the Commissioner issued a Notice of Assessment to the
appellant, assessing an additional $1,454 in personal income tax for the tax year at issue,
plus accrued interest. The Notice of Assessment referenced an exchange agreement
between the Internal Revenue Service and the Commonwealth of Massachusetts and
explained that corrected wages were determined based upon federal W-2s and federal
wages reported.1 The Notice of Assessment was sent to the appellant at the Texas
address.
The appellant filed an online abatement application with the Commissioner on
October 27, 2022, contesting the Commissioner’s assessment for the tax year at issue
(“first abatement application”) on the basis that he was not a resident of Massachusetts
in 2018. The first abatement application included his email address in the contact
information section.
By Notice of Abatement Determination dated March 10, 2023 (“first NAD”), the
Commissioner denied the appellant’s first abatement application. The first NAD stated as
a reason for the denial that the appellant failed to appear for his hearing and that based
on the record before the Commissioner the tax was properly due. The first NAD was
mailed to the Texas address on March 15, 2023, according to an affidavit signed by the
supervisor of the Commissioner’s unit responsible for the mailing of such notices. The
1 The Motion to Dismiss did not include a Notice of Intent to Assess as an exhibit, but a document in the
record references a Notice of Intent to Assess dated November 4, 2021.
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first NAD was also emailed by the Commissioner’s Office of Appeals on March 10, 2023,
to the email address provided by the appellant in the first abatement application. The
Commissioner provided both a copy of the email sent on March 10, 2023, at 10:56 a.m.
EST and the read receipt establishing that the email was opened on March 10, 2023, at
12:20 p.m. EST. The first NAD directed the appellant to file an appeal with the Board
within sixty days of the first NAD if the appellant disagreed with the Commissioner’s
determination and included the Board’s address. Sixty days from the first NAD was May
9, 2023.
The appellant filed another online abatement application with the Commissioner
on March 29, 2023, again contesting the Commissioner’s assessment for the tax year at
issue (“second abatement application”) on the basis that he was not a resident of
Massachusetts in 2018. The second abatement application also stated in part that “I filed
an initial appeal, which was denied due to a failure to appear at the hearing” and “all
notices were sent to the address in Texas, despite all contact and mailing information in
the DOR website being correct and final notices of the audit and appeal being mailed to
the correct address.” The second abatement application included the same email address
in the contact information section as provided in the first abatement application. The
record does not contain any copies of the “contact and mailing information in the DOR
website.”
By Notice of Abatement Determination dated June 26, 2023 (“second NAD”), the
Commissioner denied the appellant’s second abatement application on the basis that the
appellant’s claims were the same as those considered previously. The second NAD also
referenced the first NAD, and as had been provided in the first NAD, the appellant should
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have appealed to the Board within sixty days of the first NAD. The second NAD was
mailed to an address in Pennsylvania. There is no evidence in the record to indicate
whether or not the second NAD was also emailed to the appellant.
The appellant filed a petition with the Board on July 7, 2023 (postmarked June 30,
2023), challenging the Commissioner’s assessment for the tax year at issue. The petition
contains the same address as the first and second abatement applications and the
Pennsylvania address to which the second NAD was mailed. The petition was filed within
sixty days from the date of the second NAD, but more than 100 days from the date of the
first NAD.
In the Motion to Dismiss, the Commissioner argued that the appellant received the
first NAD and should have timely appealed to the Board from this denial of the first
abatement application. The Commissioner further argued that a second abatement
application was only appropriate if a taxpayer seeks to challenge a portion of an excise
not involved in the prior application; there are newly discovered facts; the first application
is a return that shows an overpayment; there is a second assessment imposed; or there
is 	a 	subsequent 	change 	in 	decisional 	law. 	None 	of 	those 	circumstances, 	the
Commissioner contended, were present here.
During the hearing on the Motion to Dismiss, the appellant was in agreement as to
the timeline of the facts presented. He stated that he filed the second abatement
application within sixty days of the first NAD, and that he filed with the Board four days
after receiving the second NAD.
Based on the evidence before it, the Board found that by March 29, 2023, the
appellant received written notification of the Commissioner’s determination via the first
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NAD. Thus, May 9, 2023, was the due date for filing a petition with the Board. The
appellant acknowledged in the second abatement application that he “filed an initial
appeal, which was denied due to a failure to appear at the hearing.” Instead of timely filing
an appeal with the Board, however, the appellant filed the second abatement application.
The second abatement application was not operative, as the appellant challenged the
same item of tax that he had challenged in the first abatement application. He provided
no evidence of any other circumstances for which the second abatement application
would be appropriate. Thus, the second abatement application was invalid, and the
appellant failed to timely file an appeal with the Board.
Accordingly, the Board allowed the Motion to Dismiss the appeal for lack of
jurisdiction.
OPINION
General Laws c. 62C, § 39 provides that a person aggrieved by the refusal of the
Commissioner to abate a tax may appeal to the Board “within 60 days after the date of
notice of the decision of the commissioner.” See, e.g., Daimler Chrysler Corporation v.
Commissioner of Revenue, Mass. ATB Findings of Fact and Reports 2007-270, 274.
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 to consider an appeal filed
later than authorized by G.L. c. 62C, § 39. See Watjus Electric, Inc. v. Commissioner
of Revenue, Mass. ATB Findings of Fact and Reports 1993-139, 142; Cannavo v.
Commissioner of Revenue, Mass. ATB Findings of Fact and Reports 2012-551, 561-
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62. Neither the courts nor the 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).
The appellant failed to file his petition with the Board within sixty days of the first
NAD. While the petition was filed within sixty days of the second NAD, Massachusetts
courts and the Board have consistently ruled that a “second application on the same
ground would not give the applicant a second chance to appeal to the board.” Liberty
Life Assurance Company of Boston v. State Tax Commission, 374 Mass. 25, 29 n.4
(1977); Fredkin, et al. v. State Tax Commission, 369 Mass. 973, 974 (1976) (ruling that
“[f]urther applications after the time [to appeal to the Board] had run did not avoid the time
limit”); Cannavo, Mass. ATB Findings of Fact and Reports at 2012-561-62. See also 830
CMR 62C.37.1(5)(f) (“A taxpayer may not file a second application for abatement which
puts in issue the identical item of tax for a given period as challenged in a previous
application.”).
A second abatement application is appropriate only where: a taxpayer seeks to
challenge a “portion of an excise not involved” in the prior application; there are newly
discovered facts; the first application is a return which shows an overpayment; there is a
second 	assessment 	imposed; 	or 	there 	is 	a 	subsequent 	change 	in 	decisional
law. Focaccia, Inc. v. Commissioner of Revenue, Mass. ATB Findings of Fact and
Reports 2013-665, 668 (citing Liberty Life, 374 Mass. at 29 n.4). None of these
circumstances were present here. The appellant’s second abatement application was a
repeat of his first abatement application, challenging the same personal income tax
assessment. It did not contain any substantiating evidence or new relevant information.
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Therefore, the second abatement application is invalid for purposes of setting the Board’s
jurisdiction, and the denial of the first abatement application thus set the jurisdictional
clock for G.L. c. 62C, § 39. See Santos v. Commissioner of Revenue, Mass. ATB
Findings of Fact and Reports 2020-485, 493 (ruling that when a subsequent abatement
application “did not contain newly discovered facts not already included” in the earlier
abatement application, the previous abatement application “was controlling for purposes
of determining jurisdiction”); see also Good v. Commissioner of Revenue, 395 Mass.
686, 688 (1985) (affirming Board’s dismissal of appeal where taxpayer failed to timely file
an appeal with the Board within sixty days of the Commissioner’s denial of an abatement
application).
Because the appellant failed to file a timely appeal under G.L. c. 62C, § 39 from
the Commissioner’s first NAD, the Board found and ruled that it did not have jurisdiction
over this appeal.
Accordingly, the Board allowed the Commissioner's Motion to Dismiss this appeal
for lack of jurisdiction.
THE APPELLATE TAX BOARD
By: ____________________________
Mark J. DeFrancisco, Chairman
A true copy,
Attest: _ 	_________
Clerk of the Board
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