Daniel Paul Flynn v. Commissioner of Revenue (July 20, 2015)

COMMONWEALTH OF MASSACHUSETTS
APPELLATE TAX BOARD



DANIEL PAUL FLYNN		     v.  	     COMMISSIONER OF REVENUE 

Docket No. C314776			    		Promulgated:
							July 20, 2015


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 Daniel Paul Flynn ("appellant") for the tax year ending December 31, 2008 ("tax year at issue").  
	Commissioner Chmielinski heard the Commissioner's Motion for Summary Judgement ("Motion"). Chairman Hammond and Commissioners Scharaffa, Rose and Good joined him in the decision of the Appellate Tax Board ("Board") to dismiss the appellant's appeal for lack of jurisdiction. 
	The Board, on its own motion, issues these findings of fact and report simultaneously with its decision in this appeal. 

	Daniel Paul Flynn, pro se, for the appellant
    	Diane M. McCarron, Esq. for the appellee 


FINDINGS OF FACT AND REPORT
	Based on the testimony and exhibits entered into evidence at the hearing of the Motion, the Board made the following findings of fact.
	During the tax year at issue, the appellant was a Massachusetts resident and had taxable income including wages from Massachusetts employers. The appellant, however, did not file a Massachusetts personal income tax return. Based on information received from the Internal Revenue Service regarding the appellant's income, the Commissioner issued a Notice of Failure to File dated May 7, 2011, instructing the appellant to file a personal income tax return for the tax year at issue. The appellant did not file a return and the Commissioner, having received no response from the appellant, issued a Notice of Assessment dated July 6, 2011, in the amount of $2,096.42.  
On October 26, 2011, the appellant filed a twelve page Affidavit of Revocation and Rescission ("Affidavit") with the Commissioner in which he advanced several spurious arguments for abatement, including that he was not a "taxpayer" and was not obligated to file a personal income tax return. The Commissioner treated the appellant's filing as an Application for Abatement, which was denied by a Notice of Abatement Determination dated December 6, 2011. As of the hearing of this appeal, the appellant had not filed a Massachusetts personal income tax return for the tax year at issue.  
	The appellant timely filed a Petition Under Formal Procedure with the Board On February 2, 2012, and Commissioner Chmielinski subsequently heard the Motion.  
Based on the foregoing facts, and as discussed further in the following Opinion, the Board found and ruled that the appellant was required but failed to file a Massachusetts 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 or decide this appeal. Accordingly, the Board dismissed the appellant's appeal for lack of jurisdiction and issued a decision for the appellee.  

                            OPINION

	Pursuant to G.L. c. 62, § 2, residents of Massachusetts are taxed on all of their income, regardless of the source, with certain exceptions not here relevant. 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. General Laws chapter 62C, section 38 provides that  "[n]o 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. Consistent with this express prerequisite to abatement, the Supreme Judicial 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."); see also Theodore and Joan Levitt, Mass.  ATB Findings of Fact and Reports 1997-38, 45 (citing A.W. Chesterton v. Commissioner of Revenue, 406 Mass. 466, 468 (1990)("the Board has no jurisdiction to order an abatement unless it finds that the proceedings were . . . prosecuted in the manner specifically prescribed by the governing statute.").
The appellant did not file the requisite tax return, choosing instead to put forth frivolous legal arguments in support of his assertion that he was not required to do so. Indeed, the instant appeal presents operative facts and legal arguments that are virtually identical to those previously considered and rejected by the Board. More specifically, the appellant in Joseph R. Olson v. Commissioner of Revenue, Mass. ATB Findings of Fact and Reports 2013-151, was a Massachusetts resident who had taxable income for a given year and failed to file a Massachusetts personal income tax return arguing, inter alia, that he was not a "taxpayer" and was not required to file a return. Id. at 152-154. Mr. Olson's arguments, like those advanced by the appellant, consisted of hollow statutory and constitutional claims that he and other "tax protesters" had advanced in the past, and which the Board has, without exception, summarily rejected. Id. at 155-156; see also Joseph R. Olson v. Commissioner of Revenue, Mass. ATB Findings of Fact and Reports 2001-437, 438; Joseph R. Olson v. Commissioner of Revenue, Mass. ATB Findings of Fact and Reports 2003-492, 493; 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.   
Because the appellant did not file a Massachusetts personal income tax return for the tax year at issue, the Board found and ruled that it did not have jurisdiction to hear or decide this appeal. 

Accordingly, the Board dismissed the appeal 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

ATB 2015-400