Joseph R. Olson v. Commissioner of Revenue (March 6, 2013)

COMMONWEALTH OF MASSACHUSETTS
APPELLATE TAX BOARD



JOSEPH R. OLSON		     v.  	     COMMISSIONER OF REVENUE 

Docket No. C316285			    		Promulgated:
							March 6, 2013


This is an appeal 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 against Joseph R. Olson ("appellant") for the tax year ending December 31, 2008 ("tax year at issue").  
	Chairman Hammond heard the Commissioner's Motion to Dismiss for Lack of Jurisdiction ("Motion to Dismiss").  Commissioners Scharaffa, Mulhern, and Chmielinski joined him in the decision for the appellee. 
	These findings of fact and report are issued pursuant to a request by the appellant under G.L. c. 58A, § 13 and 831 CMR 1.32.

	Joseph R. Olson, pro se, for the appellant
    	Andrew M. Zaikis, Esq. for the appellee 


FINDINGS OF FACT AND REPORT
	Based on the testimony and exhibits entered into evidence at the hearing of the Commissioner's Motion to Dismiss, the Appellate Tax Board ("Board") made the following findings of fact.
	During the tax year at issue, the appellant was a Massachusetts resident with taxable income.  However, the appellant did not file a Massachusetts personal income tax return for the tax year at issue.  The Commissioner issued to the appellant a Notice of Failure to File dated May 7, 2011, instructing him to file a personal income tax return for the tax year at issue by June 6, 2011. Nevertheless, the appellant did not file a Massachusetts personal income tax return, and the Commissioner assessed income tax in the amount of $2,282.65 to the appellant on June 21, 2011.  The Commissioner notified the appellant of the assessment by Notice of Assessment dated June 22, 2011.  
On July 20, 2011, the appellant filed an Application for Abatement with the Commissioner.  Included in the abatement application was an "Affidavit of Revocation and Rescission" ("Affidavit"), a lengthy document signed by the appellant in which he advanced numerous grounds for abatement, including the claims that he was not a "taxpayer" and that he had no obligation to file a Massachusetts personal income tax return.  Among Mr. Olson's legal and factual arguments were allegations of "constructive fraud perpetrated" on him by "Congress and the Internal Revenue Service" and complaints about the misleading practices of lawyers, certified public accountants, and employers who have, according to Mr. Olson, incorrectly influenced him to believe that he was required to file tax returns.  In the Affidavit, the appellant also "revok[ed]" and "rescind[ed]" certain documents previously signed by him, including his federal income tax return and Form W-4, which authorized his employer to withhold income taxes from his wages.  The appellant's stated reason for "revok[ing]" and "rescind[ing]" those documents was his newfound understanding that he was not required, as a "free inhabitant" and "sovereign individual," to file tax returns.  
The Commissioner denied the appellant's request for abatement by Notice of Abatement Determination dated April 10, 2012, which stated that the basis for the denial of the abatement was the appellant's failure to file a tax return for the tax year at issue.  
	On June 6, 2012, the appellant timely filed a Petition Under Formal Procedure with the Board, to which he appended the Affidavit.  The Commissioner subsequently filed a Motion to Dismiss on September 19, 2012, asserting that the appellant's failure to file a tax return deprived the Board of jurisdiction to hear this appeal.  
Based on the foregoing facts, and as discussed further in the following Opinion, the Board found and ruled that the appellant was required to file, but did not file, a Massachusetts resident personal income tax return for the tax year at issue.  As the filing of a tax return is a prerequisite to jurisdiction, the Board found and ruled that it did not have jurisdiction to hear and decide this appeal.  
Accordingly, the Board allowed the Commissioner's Motion to Dismiss and issued a decision for the appellee in this appeal.  

                            OPINION
	Under G.L. c. 62, § 2, residents of Massachusetts are taxed on all of their income, regardless of the source, with certain exceptions not relevant to this appeal.  G.L. c. 62, § 2.   Individuals seeking an abatement of tax may apply to the Commissioner for an abatement under the provisions of G.L. c. 62C, § 37.  G.L. c. 62C, § 38 sets forth an express prerequisite to abatement, which is that: "No tax assessed on any person liable to taxation shall be abated unless the person assessed shall have filed, at or before the time of bringing his application for abatement, a return as required by this chapter for the period to which his application relates[.]"  G.L. c. 62C, § 38.  
Thus, when a taxpayer fails to comply with the statutory prerequisite of filing a tax return, the Board is without authority to grant an abatement.  The Court has held that a taxpayer's failure to file a tax return deprives the Board of jurisdiction over his appeal.  See Commissioner of Revenue v. Pat's Super Market, Inc., 387 Mass. 309, 310 (1982); Assessors of Boston v. Suffolk Law School, 295 Mass. 489, 492 (1936) (citing International Paper Co. v. Commonwealth, 232 Mass. 7, 10 (1919)) ("Since the remedy by 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.").  
In the present appeal, Mr. Olson conceded that he did not file a tax return, arguing instead that he was not required to file one.  Mr. Olson's arguments consisted mainly of the frivolous legal and constitutional claims that he and other tax protesters have advanced in the past, and which the Board has summarily rejected.  See Joseph R. Olson v. Commissioner of Revenue, Mass. ATB Findings of Fact and Reports 2001-437, 438 ("Olson I"); Joseph R. Olson v. Commissioner of Revenue, Mass.  ATB Findings of Fact and Reports 2003-492, 493 ("Olson II") (finding that appellant's claim that his wages were not "gross income" were frivolous and without merit); David P. Fontaine v. Commissioner of Revenue, Mass. ATB Findings of Fact and Reports 2008-1044, 1049-50; Bolton v. Commissioner of Revenue, Mass. ATB Findings of Fact and Reports 2005-387, 394 (quoting Lonsdale v. Commissioner, 661 F.2d 71, 72 (5th Cir. 1981)). However, in the present appeal, unlike in Olson I and Olson II, Mr. Olson failed to even file a tax return, thus depriving the Board of jurisdiction.  
Because Mr. Olson did not file a tax return for the tax year at issue, the Board found and ruled that it did not have jurisdiction to hear this appeal. The Board therefore allowed the Commissioner's Motion to Dismiss and issued a decision for the appellee.
						THE APPELLATE TAX BOARD
	  		    

					By: 				___________	___
    Thomas W. Hammond, Jr., Chairman
A true copy,

Attest:		______	________
	     Clerk of the Board

 On October 4, 2012, the appellant filed a Request for Entry of Default, contending that the Commissioner's failure to file an answer within thirty days of the filing of his appeal should result in a default judgment in favor of the appellant.  However, pursuant to 831 CMR 1.14 and 1.16, the Commissioner may file an answer or Motion to Dismiss within thirty days of the service of the Petition "or within such further time as the Board may allow." In the present appeal, the Board allowed the Commissioner to file her Motion to Dismiss on September 19, 2012, and accordingly, it denied the appellant's Request for Entry of Default.  See Stephanie Spinosa d/b/a Gourmet Decisions v. Assessors of Wellesley, Mass. ATB Findings of Fact and Reports 2009-744, 746.  

ATB 2013-156