John Martins v. Commissioner of Revenue (May 17, 2011)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



JOHN MARTINS		          v.         COMMISSIONER OF REVENUE

Docket No.  C298758 	       	      Promulgated:
								 May 17, 2011		  				

This is an appeal filed under the formal procedure pursuant to G.L. c. 58A, § 7 and G.L. c. 62C, § 39(c), from the refusal of the Commissioner of Revenue ("Commissioner" or "appellee") to abate personal income tax assessed to John Martins ("appellant") for the tax years 1992 through 1994 and 1996 through 2001 ("tax years at issue").
	Chairman Hammond heard the Commissioner's Motion to Dismiss the appellant's appeal for lack of jurisdiction, and Commissioners Scharaffa, Egan, Rose, and Mulhern joined him in the decision for the appellee.
	These findings of fact and report are made pursuant to requests by the appellant and appellee under G.L. c. 58A, § 13 and 831 CMR 1.32.

	Michael S. Marino, Esq. and Melissa Curley, Esq. for the 	appellant.

	Mireille T. Eastman, Esq. for the appellee.




FINDINGS OF FACT AND REPORT

The Commissioner filed a Motion to Dismiss the appellant's appeal for lack of jurisdiction on March 2, 2009, alleging that the appellant failed to file his appeal with the Appellate Tax Board ("Board") within the statutory time period prescribed by G.L. c. 62C, § 39. On March 9, 2009, the Board held a hearing relating to the Commissioner's motion. Based on the arguments presented during the hearing, supporting memoranda and various documents submitted during the discovery process, including sworn statements from the parties, the Board made the following findings of fact. 
Having been issued a Notice of Failure to File a Massachusetts personal income tax return for the tax year 1999 during January of 2003, the appellant filed a Form 1 - Massachusetts Resident Personal Income Tax Return for each of the tax years at issue.  On these returns, the appellant listed his address as 390 Broadway, Somerville, MA 02145 (the "Somerville address"). On February 20, 2004, the appellant filed a Form CA-6, Application for Abatement/Amended Return ("abatement application"), claiming that his income tax returns had been filed in error because he was not a Massachusetts resident during the tax years at issue. The address appearing on the application for abatement was 13844 SW 106 TERR., MIAMI, FL 33186 (the "Miami address").  
Accompanying the abatement application, which was signed by attorney Michael S. Marino, was a Form M-2848, Power of Attorney and Declaration of Representative ("Form M-2848") appointing Mr. Marino as the appellant's attorney in fact ("POA").   Also attached was a "Durable Power of Attorney" appointing the appellant's brother, Joe Martins, as his POA.  By letter to the Department of Revenue ("DOR") dated May 10, 2004, Mr. Marino requested that all future correspondence relating to the appellant be sent to Mr. Marino. 
In his abatement application, the appellant requested both a statutory hearing and settlement consideration. Consequently, the matter was transferred by the DOR's Customer Service Bureau to the DOR's Office of Appeals, which conducted a statutory hearing on November 28, 2005. The Office of Appeals issued a determination letter on April 18, 2006, setting forth the basis for the DOR's impending denial of the appellant's abatement application.    
On April 25, 2006, the DOR issued a Notice of Abatement Determination denying the appellant's abatement application ("Notice"). The Notice was addressed to the appellant and his brother, Joe Martins, at the Somerville address. A copy of the Notice was sent to Mr. Marino on April 27, 2006. 
During the discovery phase of the proceedings relating to this appeal, the appellant submitted Responses to Commissioner's Request for Admissions ("Admissions"). Among his responses, the appellant acknowledged that he had received the Notice during 2007. Further, the responses included Mr. Marino's acknowledgement that he had received a copy of the Notice in 2006 and 2007.            
On January 11, 2007, having received a request for information relating to the Notice from Mr. Marino, the hearing officer at the Office of Appeals who had conducted the hearing sent Mr. Marino a copy of the Notice via facsimile. Mr. Marino acknowledged that he received the facsimile the day it was sent. The record does not reflect subsequent communication from the appellant until nearly twenty-one months later, on October 2, 2008, when the appellant's counsel sent a letter to the DOR purporting to withdraw the appellant's consent for the Commissioner to act on his abatement application more than six months from the date of its filing. The next day, the appellant mailed his petition, which was received by the Board on October 6, 2008.
	Based on the foregoing, and for reasons which are explained in the Opinion section of these findings, the Board found and ruled that: Mr. Marino was authorized to receive the Notice on behalf of the appellant, and such receipt served as actual notice to the appellant; and the appellant's receipt of the Notice in 2007, at the latest, separately served to satisfy applicable notice requirements. The Board thus found and ruled that the appellant's October 2008 appeal to the Board was not timely and, therefore, it lacked jurisdiction over the appeal.  Accordingly, the Board issued a decision for the appellee.



OPINION
Appeals to the Board from the Commissioner's refusal to abate a tax are governed by G.L. c. 62C, §39, which provides, in pertinent part that "[a]ny person aggrieved by the refusal of the Commissioner to abate a tax, in whole or in part, may appeal therefrom, within sixty days after the notice of the decision of the commissioner . . . by filing a petition with the clerk of the appellate tax board." 
	The Board does not have jurisdiction to hear an appeal that is filed after the statutorily prescribed time period. Commissioner of Revenue v. Pat's Super Market Inc., 387 Mass. 309, 311 (1982); see also Peterson v. Commissioner of Revenue, Mass. ATB Findings of Fact and Reports 1994-305. Neither the courts nor the Board have the authority to create an exception to the time limit specified by statute. Sears Roebuck & Co. v. State Tax Commission, 370 Mass. 127, 130 (1976). 
	This appeal centers upon the timeliness of the appellant's petition to the Board. The appellant does not dispute that the Notice was sent to Mr. Marino and to the Somerville address. Neither does the appellant dispute that both he and Mr. Marino received the Notice, in Mr. Marino's case in 2006 and 2007, and in the appellant's case, 2007 at the latest. Rather, the appellant's argument depends entirely upon the Commissioner's failure to mail the Notice to the appellant at the Miami address. This lapse, according to the appellant, rendered the Notice a nullity. On this basis, the appellant asserts that "on October 2, 2008, having not heard from the Commissioner on his application for abatement . . . [he] withdrew his consent pursuant to c. 58A, § 6." Appellant's Opposition to the Commissioner of Revenue's Motion to Dismiss, p. 2-3. The appellant then claims to have timely filed his petition with the Board on October 6, 2008. The Board was not persuaded by the appellant's arguments or his conclusion that his petition was timely.
	Pursuant to G.L. c. 62C, § 37, "[t]he commissioner shall give notice to the applicant of [her] decision upon the [abatement] application." Under 830 C.M.R. 62C.37.1(7), the Commissioner "shall mail or deliver written notice of the decision to grant or deny the abatement application to the taxpayer or his representative."  G.L. c. 62C, § 71 provides that "[a]ny notice authorized or required under the provisions of [chapter 62C] may be served personally or may be given by mailing the same, postage prepaid, to the person for whom it is intended, addressed to such person at his address as it appears in the records of the commissioner."
	The appellant argues that pursuant to the cited notice provisions, the only person to whom the Notice should have been sent was the appellant, and that his "address of record" within the meaning of § 71 was the Miami address. To reach this conclusion, the appellant, implicitly acknowledging that receipt of a notice of abatement determination by an authorized representative may satisfy applicable notice requirements, places particular emphasis on the contents of the Form M-2848, and his choice not to check the box on the form requesting that copies of notices and other communications be sent to Mr. Marino. Thus, the appellant concludes that any notice sent to and received by Mr. Marino is ineffective. The appellant, however, makes no reference to Mr. Marino's letter of May 10, 2004, in which Mr. Marino requested that he receive all subsequent correspondence from the DOR relating to the appellant. By the explicit terms of Form M-2848, Mr. Marino was empowered to make this request. Specifically, Form M-2848 provides that subject to its revocation, which did not occur, or other limitations not relevant to this appeal, Mr. Marino "c[ould] perform any and all acts that the [appellant] [could] perform. . . ." Mr. Marino was therefore entitled to request that he receive all future correspondence, including the Notice, on the appellant's behalf. Having found that Mr. Marino was authorized to receive the Notice, the Board found and ruled that the DOR correctly sent the Notice to Mr. Marino and his receipt of the same served as actual notice to the appellant. See Theodore and Joan Levitt v. Commissioner of Revenue, Mass. ATB Findings of Facts and Reports 1997-38, 41-44 (having explicitly declined to make a finding as to whether a notice of abatement denial was mailed to the appellants, the Board found that the appellants received notice of the denial on the date the notice was received by their attorney); see also Syms Corp. v. Commissioner of Revenue, Mass. ATB Findings of Facts and Reports 2000-711, 719, aff'd 436 Mass. 505 (2002) (finding that the appellant received notice of an abatement denial when its representative received a copy of the denial notice). 
	The Board also found and ruled that even if the Notice had not been properly sent to and received by Mr. Marino, the appellant's receipt of the Notice was dispositive. As noted, supra, the appellant unequivocally acknowledged that he received the Notice during 2007. He did not subsequently disavow this acknowledgement. Rather, the appellant asserted only that he did not receive the Notice at a particular location, the Miami address, or directly from the Commissioner. The appellant then focused on the failure of the Commissioner to send the Notice to him at the Miami address, leading him to conclude that the notice requirements of c. 62C had not been met. By the appellant's reasoning, notwithstanding that he received actual notice of the Commissioner's abatement denial, and having not yet withdrawn consent for the Commmissioner to act on his abatement application, he would be able to file a timely appeal with the Board into the indefinite future. Indeed, in oral argument during the motion hearing relating to this appeal, counsel for the appellant argued that "[a]ctual notice is not relevant." Hearing Transcript, p. 12. The appellant cites no authority, and the Board knows of none, to support the counterintuitive proposition that actual notice of an abatement denial does not serve to satisfy the notice requirements of G.L. c. 62C. In fact, notice provisions such as those contained in G.L. c. 62C, §§ 37 & 71 are by design intended to ensure that a taxpayer receives actual notice of material information. See, e.g. SCA Disposal Services of New England, Inc. v State Tax Commission, 375 Mass. 338, 341 (1978) (holding that it is "logical to infer" that relevant notice provisions were "included to indicate that compliance with those provisions provides some evidence of actual notice.") 
	Finally, as previously noted, a taxpayer generally must file an appeal with the Board "within sixty days after the notice of the decision of the commissioner." G.L. c. 62C, § 39. Consistent with the Court's holding in SCA Disposal, if the Board were to find that the appellant did not receive the Notice within this statutory time limit, the appellant would be afforded a "reasonable time to appeal which [could not] be longer than the statutory period itself, measured from the date of receipt." SCA Disposal, 375 Mass. at 342. Given Mr. Marino's actual receipt of copies of the Notice in 2006 and 2007, and the appellant's actual receipt of the Notice in 2007, allowance for the sixty day statutory appeal period pursuant to SCA Disposal would not nearly suffice to render the appellant's October 2008 petition timely.   
Accordingly, the Board allowed the Commissioner's Motion to Dismiss the appellant's appeal for lack of jurisdiction 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

 Pursuant to G.L. c. 58A, § 6, the appellant consented to extend the time for the Commissioner to act beyond the six month deadline provided in § 6. 
 Directly beneath the section on an abatement application in which a taxpayer provides personal information, including name and address, is an oval to be filled in if the taxpayer's address has changed since the last return was filed. The appellant did not fill in this oval on his abatement application. 
 Subject to specific limitations, which are not relevant to this appeal, the Form M-2848 provides that an attorney in fact is "authorized . . . to receive confidential information and to perform any and all acts that the principal(s) can perform. . . ."  
 Section D of Form M-2848 provides that "[o]riginals of notices and other written communications go to the taxpayer(s)."  Below this statement is a box, which the appellant did not check, to request that copies of notices and all other written communications be mailed to the POA. 
 Through the Durable Power of Attorney, the appellant ostensibly authorized his brother, who resided at the Somerville address, to perform any and all acts the appellant could perform with respect to his federal and state tax liabilities, and to hire attorneys, certified public accountants "or others licenced by the Internal Revenue Service by executing a Form M-2848 . . . for the same."
 The Office of Appeals sent a hearing scheduling letter and a letter requesting additional information to the appellant at the Miami address. A copy of each letter was sent to Mr. Marino. The determination letter was sent to the Somerville address, with a copy to Mr. Marino. The record, however, provides no explanation for this inconsistency.     
  The Admissions were signed under the pains and penalties of perjury by the appellant and by Mr. Marino as his attorney.
  The appellant also stated that upon "reasonable inquiry" he was "without knowledge or information sufficient to form a belief" as to whether his brother, Joe Martins, had received a copy of the Notice during 2006 or 2007. 
 The Board made no finding regarding the appellant's "address as it appear[ed] in the records of the commissioner." G.L. c. 62C, § 71. Such a finding was unnecessary given the Board's findings relating to receipt of the Notice by Mr. Marino and the appellant.  
  The appellant also argued that the Durable Power of Attorney granted to his brother had no binding legal effect. Coupled with the assertion that the Somerville address was not the appellant's address of record, this argument would, in the appellant's view, render the Somerville address irrelevant for purposes of satisfying the notice requirements of G.L. c. 62C.  The Board did not address the argument, having found other facts necessitating dismissal of the appellant's appeal. It is noteworthy, however, that the appellant's counsel, who notarized and submitted the Durable Power of Attorney to the DOR, presumably to allow the appellant's brother to act on the appellant's behalf, ultimately characterized the document as lacking legal effect.

ATB 2011-422