Brian R. Hogan v. Commissioner of Revenue.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1184

BRIAN R. HOGAN

vs.

COMMISSIONER OF REVENUE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff appeals from a decision of the Appellate Tax

Board (board) dismissing his appeal. We affirm.

The plaintiff owed a tax debt of over $30,000 as a

"responsible person" for Resource Systems, Inc. (Resource

Systems), a now-defunct corporate entity. In January 2013 he

entered into a payment plan with the Massachusetts Department of

Revenue (MDOR) by which he agreed to gradually pay the arrears.

After many payments (totaling less than a third of the amount

owed), MDOR no longer sought payment of the balance.

The plaintiff then sought an abatement, maintaining that

his tax liability had been overpaid by over $200,000 by virtue

of a settlement agreement made in his bankruptcy proceedings.
He asserted that under that agreement the Federal Internal

Revenue Service (IRS) had remitted over $270,000 to MDOR,

resulting in an overpayment of his arrearage of approximately

$247,000. After MDOR denied the abatement, the plaintiff

appealed to the board, which found, after an evidentiary

hearing, no evidence of overpayment and dismissed the case for

want of jurisdiction. Although we could dismiss the plaintiff's

appeal for failing to comply with the standards under

Mass. R. A. P. 16, as appearing in 481 Mass. 1628 (2019), we

exercise our discretion to consider it. See Mass. R. A. P.

3 (a) (1), as appearing in 481 Mass. 1603 (2019).

Under G. L. c. 58A, § 13, "'[t]he decision of the board

shall be final as to findings of fact.' However, 'the court may

consider whether the evidence in the case is sufficient to

support the board's conclusion of law.'" Rosse v. Commissioner

of Revenue, 430 Mass. 431, 433 (1999), quoting Kennametal, Inc.

v. Commissioner of Revenue, 426 Mass. 39, 43 (1997), cert.

denied, 523 U.S. 1059 (1998). The evidence is sufficient here.

The record supports the board's conclusion that the IRS made no

payment to MDOR for Resource Systems's tax liability.1 The

1 MDOR received $19,495 from the bankruptcy proceeding,
which was allocated to liabilities of two other plaintiff-
affiliated corporations, Resource Environmental Systems, Inc.
and Resource Technology Corporation.

2
board's determination that there was no overpayment because the

plaintiff's liabilities exceeded his payments was also well

supported.

"[T]he board has only that jurisdiction conferred on it by

statute." Commissioner of Revenue v. Pat's Super Mkt., Inc.,

387 Mass. 309, 311 (1982). Here, that jurisdiction is conferred

by G. L. c. 62C, § 39 (c), which allows the board to hear

appeals involving any "person aggrieved by the refusal of the

commissioner to . . . refund any tax" that has been overpaid.

See G. L. c. 62C, § 36. Where the board found that there had

been no overpayment, it lacked jurisdiction and properly

dismissed the plaintiff's appeal.2

Decision of Appellate Tax
Board affirmed.

By the Court (Sacks, Shin &
Hershfang, JJ.3),

Clerk

Entered: November 12, 2024.

2 Other arguments, relied upon by the plaintiff but not
mentioned in this decision, have been considered; we find
nothing in them that merits discussion. See Boston Hous. Auth.
v. Y.A., 482 Mass. 240, 248 n.20 (2019); Commonwealth v.
Domanski, 332 Mass. 66, 78 (1954).

3 The panelists are listed in order of seniority.

3