Schussel v. Commissioner of Revenue

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13-P-876 Appeals Court

GEORGE SCHUSSEL & another1 vs. COMMISSIONER OF REVENUE.

No. 13-P-876

Suffolk. June 4, 2014. - September 30, 2014.

Present: Graham, Meade, & Fecteau, JJ.

Taxation, Appellate Tax Board: findings, Income tax, Gross
income. Words, “Tax-related.”

Appeal from a decision of the Appellate Tax Board.

Francis J. DiMento for the taxpayers.
John M. Stephan, Assistant Attorney General, for
Commissioner of Revenue.

GRAHAM, J. This is an appeal from an Appellate Tax Board

(board) decision upholding the denial by the Commissioner of

Revenue (commissioner) of a request for an abatement of double

taxes assessed to George and Sandra Schussel (Schussels) for

filing false or fraudulent income tax returns for the calendar

years 1993, 1994, and 1995 (tax years at issue). The case

1
Sandra Schussel.
2

presents three issues: first, whether the board erred as a

matter of law in upholding the commissioner's double tax

assessment based on the Schussels' false or fraudulent filings;

second, whether the Schussels were entitled to amnesty from the

double tax assessment; and third, whether the board erred as a

matter of law in ruling that the seven-year look-back period for

nonfiling taxpayers does not apply to the Schussels. We affirm.

Background. The facts are taken from the board's findings

of fact and report. George2 received his bachelor's degree from

the University of California in 1961. He attended graduate

school at Harvard University, where he earned a master's degree

and Ph.D. in 1966. Sandra, who was born and raised in Lynn,

attended the Peter Brent Brigham Hospital nursing school in

Boston and graduated in 1962. She practiced as a registered

nurse at The Children's Hospital in Boston for six months before

leaving to begin work as a flight attendant for American

Airlines.

The Schussels met in 1964 and were married the following

year. They lived in Cambridge while George completed his

education at Harvard. After George became employed, the couple

relocated several times. The couple lived in New Jersey when

their first daughter was born in 1970. Later that year, the

Schussels moved back to Massachusetts, and George secured a job

2
We use first names to avoid confusion.
3

at American Mutual Insurance Company. In 1971, the family moved

to Lynnfield.

In 1979, George founded his own company, Digital

Consulting, Inc. (DCI), which he incorporated in Massachusetts.

DCI organized, promoted, and conducted trade shows and

conferences that were designed to teach guests how to utilize

the latest technological advancements to solve business and

government problems. The events were held in several major

cities in the United States, as well as in foreign countries.

During the tax years at issue, George operated DCI from an

office in Andover.

George testified to the board that, during the tax years at

issue, he spent approximately 70 days a year in Massachusetts,

80 days a year in Florida, 95 days a year traveling for

business, and 120 days a year in New Hampshire. However, he

testified at his deposition that he was in Massachusetts for

about a third of each year, or nearly 120 days.3

On February 26, 2004, George was indicted in the United

States District Court for the District of Massachusetts on one

3
Neither version of his testimony established that he spent
at least 183 days a year in Massachusetts. As such, the
Schussels could not be deemed Massachusetts residents for tax
purposes by virtue of G. L. c. 62, § 1(f). Therefore, the
question of the Schussels' residency for tax purposes turned on
whether they were domiciled in Massachusetts during the tax
years at issue. In the proceedings below, they argued that they
were not domiciled in Massachusetts. However, the Schussels
have elected not to pursue this argument on appeal.
4

count of conspiracy and two counts of tax evasion, including

that he filed a false and fraudulent income tax return for the

tax year 1995. The parties agree that, based on Internal

Revenue Service (IRS) letter 692 and form 4549-A,4 the Schussels'

adjusted income was determined to be as follows: $1,661,709 for

tax year 1993; $2,354,817 for tax year 1994; and $3,341,868 for

tax year 1995. These amounts were known as of January 20, 2009,

when form 4549-A was issued. George reported his Federal

taxable income to be substantially less than these figures. In

one instance, the 1995 Federal return reported income of only

$1,030,785, a difference of $2,311,083 from the adjusted income

for that year. On January 25, 2007, he was found guilty on all

three charges. He served a prison sentence until he was granted

a supervised release on February 1, 2011.

Although the Schussels owned and maintained a Massachusetts

corporation and a residence in Lynnfield, they failed to file

any Massachusetts personal income tax returns, whether resident

or nonresident, from 1988 to June, 2007. On May 15, 2007, the

commissioner issued a notice of failure to file personal income

taxes with the Department of Revenue (department). The notice

was sent to the Schussels' attorney tax preparers. Only then

did the Schussels file State returns for the tax years at issue.

4
IRS form 4549-A indicates "Income Tax Discrepancy
Adjustments."
5

However, the returns filed with the department were based on the

Federal returns, which had been deemed false or fraudulent and

led to George's convictions.

On January 20, 2009, the commissioner applied the immediate

assessment, double tax assessment, and jeopardy assessment

provisions of G. L. c. 62C, §§ 26(d), 28, and 29, respectively.

Approximately one month later, the commissioner inadvertently

issued a tax amnesty notice to the Schussels. The amnesty

notice indicated that if, by a specified date, they paid the

full amount of tax and interest assessed under the immediate

assessment provision, the commissioner would waive the unpaid

penalties and the interest associated with those penalties. The

Schussels timely paid the amounts due, and the commissioner

waived the penalties and related interest. This waiver saved

the Schussels $905,215.32. The amount due, as indicated by the

amnesty notice, did not include the double tax assessed under

§ 28. The commissioner did not waive the double tax assessment.

The Schussels appealed the commissioner's double tax

assessment to the board, pursuant to G. L. c. 58A, § 7, and

G. L. c. 62C, § 39(c), arguing that the commissioner's refusal

to grant an abatement was in error. The board found that the

commissioner's application of the double assessment provision in

G. L. c. 62C, § 28, was justified by the Schussels' "reckless

indifference to the obligation to file accurate taxes."
6

Discussion. 1. Standard of review. "Findings of the

board are final, see G. L. c. 58A, § 13, and will not be

disturbed if they are supported by sufficient evidence."

General Mills, Inc. v. Commissioner of Rev., 440 Mass. 154, 161

(2003). "Our review of the sufficiency of the evidence is

limited to 'whether a contrary conclusion is not merely a

possible but a necessary inference from the findings.'" Olympia

& York State St. Co. v. Assessors of Boston, 428 Mass. 236, 240

(1998), quoting from Kennametal, Inc. v. Commissioner of Rev.,

426 Mass. 39, 43 (1997), cert. denied, 523 U.S. 1059 (1998).

"If supported by sufficient evidence, we will not reverse a

decision of the board unless it is based on an incorrect

application of the law." Syms Corp. v. Commissioner of Rev.,

436 Mass. 505, 511 (2002). "In reviewing mixed questions of

fact and law, the board's expertise in tax matters must be

recognized, and its decisions are due 'some deference.'" Koch

v. Commissioner of Rev., 416 Mass. 540, 555 (1993), quoting from

McCarthy v. Commissioner of Rev., 391 Mass. 630, 632 (1984).

2. Double tax assessment. General Laws c. 62C, § 28,

inserted by St. 1976, c. 415, § 22, states, in relevant part,

"If a person . . . has filed a false or fraudulent return
or has filed a return with a willful attempt in any manner
to defeat or evade the tax, the commissioner may determine
the tax due, according to his best information and belief,
and may assess the same at not more than double the amount
so determined, which additional tax shall be in addition to
the other penalties provided by this chapter."
7

The board found that the Schussels'

"intent to evade taxes was evident from the fact that,
despite working in Massachusetts for a Massachusetts
company, the [Schussels] failed to file any Massachusetts
income tax returns, not even nonresident returns, from 1988
until June of 2007, when the [Schussels] finally, upon
receipt of the Failure to File Notice, filed returns for
the tax years at issue. When they did file their
Massachusetts returns, the [Schussels] first reported
income amounts that were determined to be fraudulent in
federal court and grossly under-reported the true amount of
total income earned by over $5,500,000.00."

The board also determined that the Schussels were

Massachusetts residents for tax purposes during the tax years at

issue. From these findings, the board concluded that the

commissioner was justified in imposing a double tax assessment

because the facts established that the Schussels knowingly filed

false or fraudulent returns or intended to evade taxes during

the tax years at issue.

On appeal, the Schussels put forth three arguments in

support of their position that the evidence does not support the

board's finding that they knowingly filed false or fraudulent

returns or intended to evade taxes.5 They contend, therefore,

that upholding the double tax assessment was in error. We

reject each of the Schussels' arguments and conclude that the

5
We note that the Schussels' primary argument below was
that the nonresident returns filed were not false or fraudulent
because the Schussels had a good faith basis to believe that
they were domiciled in New Hampshire during the tax years at
issue. However, the Schussels have abandoned this argument on
appeal. See note 3, infra.
8

board's affirmation of the commissioner's double tax assessment

did not constitute error.

First, they argue that each of the three returns filed with

the department carried a rider, which should have precluded a

finding that they knowingly filed false or fraudulent returns.

The rider indicated that George had been federally indicted for

tax evasion, and that the proper amount, characterization, and

source of gross income were the subject of a pending appeal.6

They assert that the rider was attached to the State tax

returns for two reasons: (1) to put the commissioner on notice

of the appeal as to gross income, which the Schussels sought to

preserve, and (2) to indicate that the income reported on the

State tax returns may not be the correct amounts, due to the

disputed income figures. The Schussels argue that reporting the

lesser, disputed income and attaching the rider was the only way

to preserve their right to challenge the findings of their true

income. We disagree.

The Schussels underreported their State tax liability in

two ways; first, by using the fraudulent Federal return as a

6
The rider stated in full: "Taxpayer is currently a party
to a criminal tax case brought by the U.S. Attorney's Office for
which the details can be found at United States District Court
for the District of Massachusetts, Docket No. 04-10060. Items
of gross income determined purusant [sic] to said case are the
subject of a pending appeal regarding amount, characterization
and source. Income which is the subject of said case/appeal has
not been reported on this return due to the uncertaintities
[sic] described above."
9

basis to calculate their Massachusetts income, and second, by

erroneously filing as nonresidents, which would permit them to

pay only a fraction of their true taxable income to the

Commonwealth.

The Schussels had a duty to provide a more accurate report

of their earned income to the department, particularly after the

verdict in the Federal case had been issued. They could have

preserved their right to change the amounts entered on the State

returns. As the commissioner suggests, the Schussels should

have used amounts similar to those found in IRS form 4549-A when

filing returns with the department. If those figures were later

found to be overstated, resulting in overpayments to the

Commonwealth, the Schussels could then submit a request for

abatement and the return of their excess payment. This is

especially true where the Schussels had already neglected to pay

personal income taxes to the Commonwealth for approximately

twenty years.

Next, the Schussels argue that where a tax attorney

prepares returns on behalf of his clients, which returns he

believes to be accurate based on his full knowledge of the

relevant facts, then that, together with the explicit disclosure

prepared by the tax attorney and appended to the returns,

precludes the imposition of penalties based on a failure to

disclose. This argument is without merit and does not shield
10

them from liability. The Schussels rely solely on Scagel v.

Commissioner of Rev., 13 Mass. App. Tax Bd. Rep. 38 (1990), to

support their proposition.

In Scagel, the board found that the taxpayers specifically

disclosed all relevant facts related to their domicile to their

accountant and relied on the accountant's advice in filing a

nonresident return. Id. at 42. The board ruled that the

taxpayers had a good faith basis for filing a nonresident return

and, thus, the commissioner failed to meet his burden of proving

that they filed a false or fraudulent return. Id. at 48.

Here, the board appropriately rejected the application of

Scagel, where it explicitly found that

"the [Schussels'] failure to file returns and gross
underreporting of income earned amounted to more than a
mere act of negligence as in Scagel and instead amounted to
a reckless indifference to the obligation to file accurate
taxes which constituted intent to evade taxes as the Board
found in [Peter Ruggiero, Inc. v. Commissioner of Rev., 18
Mass. App. Tax Bd. Rep. 19 (1995)]."

We also note that the Schussels were considered Massachusetts

residents for tax purposes during the tax years at issue.

Therefore, in contrast to Scagel, the Schussels cannot contend

that they had a good faith basis for filing nonresident returns.

Moreover, their failure to file returns for a period of

approximately twenty years and their subsequent underreporting

of income cannot be rectified by their alleged reliance on tax

preparers.
11

Finally, the Schussels contend that the board's subsidiary

finding that they "grossly under-reported the true amount of

total income earned by over $5,500,000.00" was erroneous and

unsupported by the record because no taxing authority determined

with finality the true amount of income earned during the tax

years at issue. However, as we previously concluded, the

Schussels should have used figures more closely tied to those

found by the IRS in form 4549-A when determining their

Massachusetts taxable income. An analysis of the difference

between the adjusted income and the total income reported on

their returns for the tax years at issue results in the exact

amount found to be lacking by the board -- $5,558,736.7 The

board could also rely on the fact that in the Federal case, the

jury found, in accordance with the judge's instructions, that

there was "a substantial tax due in addition to what was shown

to be due on the return."8 It is important to note that the

7
Pursuant to form 4549-A, the following adjustments were
made to the Schussels' income for tax years 1993, 1994, and
1995, respectively: $1,661,709, $2,354,817, and $3,341,868.
These amounts total $7,358,394. The total income, as reported
by the Schussels on form 1-NR, Massachusetts nonresident income
tax return, for 1993, 1994, and 1995 were as follows: $358,880,
$383,417, and $1,057,361, respectively. The total income
reported equals $1,799,658. Therefore, the difference between
the adjusted income and total income reported was in fact
$5,558,736.
8
Although the term "substantial" was not defined by the
Federal judge, the board's finding that the Schussels' income
was underreported by more than $5 million was supported by the
12

board is not required to find the exact amount of underreported

income before concluding that the Schussels intended to evade

taxes by underreporting their income.

We conclude that the board's findings were supported by

substantial evidence. Furthermore, the findings provide

sufficient support for the board's conclusion that the

commissioner did not err in assessing the double tax. Thus, we

affirm the board's ruling, where the decision was not arbitrary

or capricious, or based on any other error of law, particularly

where the board's expertise on tax matters entitles its

decisions to some deference. See Koch, 416 Mass. at 555.

3. Application of the amnesty program. In accordance with

her authority under St. 2008, c. 461, the commissioner

"established a two-month amnesty program commencing on March 1,

2009, and ending on April 30, 2009," DOR Technical Information

Release (TIR) 09-3 (February 19, 2009), reprinted in 5 Official

MassTax Guide (West 2014). The purpose of the program was to

encourage the full payment of delinquent tax obligations to the

Commonwealth. The program applied to individuals with existing

tax liabilities from tax years ending on or before December 31,

2007. Under the program, the commissioner was authorized to

waive all unpaid penalties imposed on a taxpayer for failure to

record. The adjusted income and total income figures in the
record provide more than a sufficient basis for the board's
finding.
13

timely file a return, failure to file a proper return, and

failure to timely pay a tax liability, so long as the taxpayer

paid the full amount of the tax and interest identified by the

commissioner. However, "[t]he commissioner's authority to waive

penalties during the amnesty period shall not apply to any

taxpayer who, before the start date of the amnesty program

selected by the commissioner, was the subject of a tax-related

criminal investigation or prosecution." St. 2008, c. 461.

The commissioner issued a tax amnesty notice to the

Schussels on February 25, 2009, despite the fact that George was

subject to a tax-related criminal prosecution in Federal court

prior to the start of the amnesty program. The Schussels paid

the full amount of tax and interest identified in the tax

amnesty notice, which resulted in a waiver of penalties assessed

under G. L. c. 62C, § 33. The commissioner later discovered the

error, but did not seek to recoup the amount of the penalties,

saving the Schussels more than $900,000.

The Schussels also sought amnesty for the double assessment

penalties assessed by the commissioner pursuant to G. L. c. 62C,

§ 28. The commissioner denied their request. Relying on St.

2008, c. 461, and TIR 09-3, the board agreed with the

commissioner and concluded that George's Federal conviction for

tax evasion made him ineligible for the amnesty program.

The Schussels argue on appeal that the board's ruling was
14

in error because George's Federal proceedings did not constitute

"a tax-related criminal investigation or prosecution" within the

meaning of St. 2008, c. 461. Specifically, they argue that the

amnesty program only excludes taxpayers under investigation or

prosecution by the Commonwealth, not the Federal government.

Chapter 461 of St. 2008 and TIR 09-3 do not provide a

definition of "tax-related." "Our duty is to give these

somewhat ambiguous words . . . a reasonable construction which

will carry out what we perceive to be the legislative intention.

Although we recognize the principle that ambiguities in taxing

statutes are to be resolved in favor of the taxpayer, we do not

regard that principle as controlling in this case." Ogden

Suffolk Downs, Inc. v. Boston, 18 Mass. App. Ct. 101, 104 (1984)

(citations omitted).

The Schussels suggest that "tax-related" refers only to

Massachusetts taxes because the main purpose of the exception to

the program was to prevent the commissioner's waiver of

penalties from compromising any pending or subsequent criminal

investigation or prosecution by the Commonwealth. They argue

that the exception was put in place to prevent, for example, a

situation in which the commissioner waives the penalties

assessed against a taxpayer that also happens to be the subject

of a State criminal investigation or prosecution because the

waiver might adversely affect the Commonwealth's investigation.
15

The Schussels argue further that the Legislature's use of the

word "tax" throughout the tax statutes refers only to

Massachusetts taxes, and that there is no good reason to apply

the term more broadly in this context.

The commissioner asserts that "tax-related," as it applies

to the amnesty program, was meant to include those

investigations and prosecutions at both the State and Federal

levels. The board implicitly upheld the commissioner's

interpretation by concluding that the Schussels did not qualify

for amnesty under this exception.

"Tax," as defined by G. L. c. 62C, § 1, inserted by St.

1976, c. 415, § 22, means "any tax, excise, interest, penalty,

or addition to tax imposed by this chapter or the statutes

referred to in section two." General Laws c. 62C, § 2, inserted

by St. 1976, c. 415, § 22, states that "[t]he provisions of this

chapter shall . . . apply to the taxes imposed by chapter sixty

A; by chapters sixty-two through sixty-five C, inclusive; by

section ten of chapter one hundred and twenty-one A; by section

twenty-one of chapter one hundred and thirty-eight; and by any

act in addition thereto or amendment thereof."

The literal interpretation of the term supports the

position of the commissioner and the board; "tax-related"

literally means of or relating to tax, which is quite broad.

Moreover, the commissioner is vested with the sole discretion to
16

determine the scope of the amnesty program.9 The board's

conclusion that the commissioner's interpretation was consistent

with St. 2008, c. 461, and TIR 09-3 was not error. See Koch,

416 Mass. at 555, quoting from McCarthy v. Commissioner of Rev.,

391 Mass. at 632 (board entitled to "some deference"). See also

Xtra, Inc. v. Commissioner of Rev., 380 Mass. 277, 281 (1980)

(no reversible error where board construes legislative purpose

broadly).

We adopt the commissioner's definition of "tax-related."

This construction of the amnesty exception serves a dual

purpose. First, it prevents the commissioner from compromising

pending or subsequent criminal investigations or prosecutions by

the Commonwealth, as the Schussels suggest. Second, it

precludes those taxpayers who are under Federal investigation or

prosecution from potentially defrauding the Commonwealth in a

derivative manner, described below.

Massachusetts taxpayers use the gross income reported on

their Federal tax returns as a basis to determine and report

their Massachusetts taxable income. See G. L. c. 62, §§ 2, 6F.

As such, if a taxpayer files a false or fraudulent Federal

return, or underreports earned income, the error or fraud may

9
"Chapter 461 of the Acts of 2008 provides that the
Commissioner of Revenue shall establish a two-month amnesty
program during the fiscal year ending June 30, 2009 (the
'Amnesty Program') and determine the scope thereof." TIR 09-3.
17

pass through to the corresponding State return. The end result

would be that the Commonwealth would collect less taxes than

were actually owed. We cannot conclude that the Legislature or

the department desired to leave open the possibility that

amnesty would be given to a taxpayer subject to a tax-related

Federal investigation or prosecution where those proceedings may

also reveal a false or fraudulent State tax return. To the

contrary, we have no doubt that the Legislature and department

would seek to preclude such a result by also prohibiting the

commissioner from waiving penalties against taxpayers that are

the subject of a Federal tax investigation or prosecution.

Furthermore, this construction of the disputed language is

more consistent with the purposes of the tax statutes and the

department's policies -- that amnesty should not be available to

those taxpayers that defraud the Commonwealth and that it is to

be given only in exchange for payment of all outstanding taxes

and interest owed to the Commonwealth. Were we to adopt the

Schussels' position, amnesty might be given in exchange for

less, where the taxpayer's Massachusetts tax liability may have

been underreported. See Bolster v. Commissioner of Taxn., 319

Mass. 81, 84-85 (1946) ("None of the words of a statute is to be

regarded as superfluous, but each is to be given its ordinary

meaning without overemphasizing its effect upon the other terms

appearing in the statute, so that the enactment considered as a
18

whole shall constitute a consistent and harmonious statutory

provision capable of effectuating the presumed intention of the

Legislature").

4. Seven-year look-back period. By statute, the

limitations period on the assessment of taxes, interest, and

penalties does not begin to run unless the taxpayer files a

return. General Laws c. 62C, § 26(d), inserted by St. 1976,

c. 415, § 22, provides,

"In the case of a false or fraudulent return filed with
intent to evade a tax or of a failure to file a return, the
commissioner may make an assessment at any time, without
giving notice of his intention to assess, determining the
tax due according to his best information and belief."

However, the commissioner has established a policy of limiting

the time after which a nonfiling taxpayer will be assessed to

seven years following the failure to file. See TIR 01-8 (June

15, 2001), reprinted in 5 Official MassTax Guide (West 2014).

Here, the most recent tax year at issue, 1995, was more

than seven years removed from the date of assessment, but the

commissioner declined to apply the seven-year look-back period,

which the Schussels claim was error. The board concluded that

the commissioner did not err because although more than seven

years had passed, the commissioner is authorized to disregard

the look-back period under circumstances described in part VI of

TIR 01-8. The Schussels argue that the board's ruling was error

because "the meager factual basis underpinning the Board's
19

determination is insufficient to invoke the exceptions" provided

in part VI.

Part VI provides, in relevant part,

"In certain instances described below, when a taxpayer has
not filed tax returns, and the Commissioner believes that
the taxpayer's circumstances do not merit the application
of a look-back period of seven years or less, the
Commissioner will assess such taxpayer for all taxable
periods for which a return is due. In general, a taxpayer
will be assessed for all taxable periods for which a return
is due in each of the following instances, or in instances
involving similarly egregious circumstances:

". . .

"3. a knowing or willful failure to file returns with the
intent to avoid the payment of tax;

"4. a willful neglect to file returns despite reasonable
cause to know of a filing responsibility."

The board found that the commissioner's records, which are

not disputed by the Schussels, indicate that the Schussels "did

not file any personal income tax returns with Massachusetts from

calendar year 1989 forward, until the Commissioner issued the

Notice of Failure to File on May 15, 2007." Furthermore, the

Schussels filed tax returns only after George was convicted of

Federal tax evasion, and when those returns were filed, the

Schussels' income was grossly underreported. The board's

findings were supported by ample evidence and, thus, cannot be

described as "meager." See General Mills, Inc. v. Commissioner

of Rev., 440 Mass. at 161.

The board's decision was not arbitrary or capricious, nor
20

does it give rise to any other error of law. Therefore, we

uphold the board's ruling that

"the fact that the [Schussels] owned and were employed by a
Massachusetts company gave the [Schussels] 'a reasonable
cause to know of a filing responsibility' with respect to,
at least, nonresident tax returns. By failing to file
those income tax returns, the [Schussels] displayed at
least 'a willful neglect to file returns,' if not 'a
knowing or willful failure to file returns with the intent
to avoid the payment of tax."

Thus, in accord with TIR 01-8, part VI, the commissioner

did not err in disregarding the look-back period and assessing

the Schussels accordingly.

Conclusion. The board's decision, upholding the

commissioner's double tax assessment and denial of amnesty for

the penalties assessed under G. L. c. 62C, § 28, was supported

by the evidence and was not otherwise arbitrary or capricious.

Furthermore, the Schussels cannot escape liability on the ground

that the seven-year look-back period precluded the commissioner

from issuing assessments. The Schussels' fraud brought them

within an exception to the limitation period, allowing the

commissioner to disregard the look-back policy. Thus, we affirm

the decision of the Appellate Tax Board.

So ordered.