Eliahu & Ethel Shulam v. Commissioner of Revenue (April 7, 2008)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


ELIAHU & ETHEL SHULAM		v.	COMMISSIONER OF REVENUE

Docket No. C287963				Promulgated:
	          	   April 7, 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 appellee to abate personal income taxes for the tax year ended December 31, 2002.
Chairman Hammond heard the Commissioner's Motion to Dismiss the appeal for lack of jurisdiction.  Commissioners Scharaffa, Egan, Rose, and Mulhern joined him in a decision for the appellee. 
These findings of fact and report are made pursuant to a request by the appellants under G.L. c. 58A, §13 and 831 CMR 1.32.

	Eliahu Shulam and Ethel Shulam, pro se, for the appellants.

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


FINDINGS OF FACT AND REPORT

	On June 5, 2006, the Commissioner of Revenue ("Commissioner") issued a Notice of Failure to File ("NFF") to the appellants Eliahu and Ethel Shulman ("appellants") notifying the appellants of their failure to file a personal income tax return for the tax year 2002 ("year at issue").  Appellants did not dispute their tax liability for the year at issue; rather, they challenged only their liability for interest incurred due to their failure to timely pay the tax.  
	Appellants filed an Application for Abatement with the Commissioner seeking an abatement of interest.  The Commissioner denied this application on February 12, 2007, on the ground that, under G.L. c. 62C, § 32(a), the Commissioner had no discretion or authority to abate interest accrued on an unpaid tax.  
	Appellants timely filed their appeal of the Commissioner's decision with the Appellate Tax Board ("Board") on March 12, 2007.  Appellants contended that they timely filed the appropriate return for the period at issue and included a check in the amount of the tax due with the return; however, they offered no credible evidence to support their assertion.  Appellants did not produce a copy of the return, a cancelled check for the tax due, their check register, or similar corroborating evidence.  Appellants simply maintained that the Commissioner must have lost the tax return and the check.  
Further, appellants acknowledged at the hearing that their bank account had not been debited for the amount of the check that they claimed accompanied their timely return, and they also acknowledged that they had the use of the funds which should have been paid with the return until they responded to the Commissioner's June 5, 2006 NFF, more than three years after the tax was due.
	On the basis of these facts, the Board found and ruled that, because appellants failed to prove that the interest was improperly imposed or calculated, the Board did not have the authority to grant an abatement of interest.  Accordingly, the Board issued a decision for the appellee in this appeal.


OPINION

	Pursuant to G.L. c. 62C, § 32(a):
Taxes shall be due and payable at the time when the tax return is required to be filed, determined without regard to any extension of time for filing the return.  If any amount of tax is not paid to the commissioner on or before its statutory due date, there shall be added to the tax interest at the rate of the Federal short-term rate determined under section 6621(b) of the Internal Revenue Code, as amended and in effect for the taxable year, plus four percentage points, compounded daily.

(emphasis added).  
	Appellants failed to provide credible evidence that they paid their 2002 income tax liability on or before the April 15, 2003 due date.  Therefore, under § 32, the "imposition of interest is mandatory and there is no provision for an appeal."  Moss v. Commissioner of Revenue, Mass. ATB Findings of Fact and Reports 1989-270, 278-79; see also Blue Jay Corporation v. Commissioner of Revenue Mass. ATB Findings of Fact and Reports 1994-140, 142 ("there is no provision for abating interest accrued on a tax validly due).  
The Board could abate interest in this appeal only if the interest was improperly imposed or calculated or if the underlying tax was abated as excessive or illegal.  Moss at 279.  In the instant appeal, however, appellants did not prove that the interest was improperly imposed or calculated or that the underlying tax was excessive or illegal.  Accordingly, the Board had no authority to abate the subject interest. 





 Accordingly, the Board 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

ATB 2008-419