Janice Wilson Stevenson v. Commissioner of Revenue (June 28, 2007)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD



JANICE WILSON STEVENSON		v.	COMMISSIONER OF REVENUE



Docket No. C283206				Promulgated:
							June 28, 2007


	This is an appeal under the formal procedure pursuant to G.L. c. 58A, § 7 and G.L. c. 62, § 39 concerning personal income taxes for the tax year 2004.
	Chairman Hammond heard the appellee's Motion to Dismiss and Commissioners Scharaffa, Egan, Rose and Mulhern joined him in a decision for the appellee granting the Motion to Dismiss the appeal for lack of jurisdiction.  
	These findings of fact and report are made pursuant to a request by the appellant under G.L. c. 58A, § 13 and 831 CMR 1.32.  

	Janice Wilson Stevenson, pro se, for the appellant.
	Laura Sue Kershner, Esq., for the appellee.



FINDINGS OF FACT AND REPORT
	The appellant Janice Wilson Stevenson ("appellant") filed her 2004 personal income tax return on April 15, 2005.  On November 3, 2005 the appellant filed an amended personal income tax return for the 2004 year and attached the amended return the Department of Revenue's abatement application form, Form CA-6. 
On the amended return, the appellant increased her 2004 wages but also increased the amount of her earned income credit.  The amended return as filed increased the appellant's taxable income by $407.00.  The appellant did not pay the additional amount of tax when she filed the amended return. 
By notice of assessment dated November 23, 2005, the Commissioner informed the appellant of an amount due of $428.14, which included the amount self-assessed by the appellant, the adjustment for the earned income credit, and interest. 
The amount assessed remained unpaid and the Commissioner issued a demand for payment to the appellant dated January 24, 2006.  With no payment forthcoming, the Commissioner sent the appellant a notice of intent to levy dated March 8, 2006.  The appellant again failed to pay and a notice of levy was sent to the appellant bearing a date of April 17, 2006.  After receiving the notice of levy the appellant filed her petition with the Board on April 21, 2006.  After her petition was filed, the Commissioner of Revenue ("Commissioner") issued an Abatement Approval Notice on September 26, 2006, approving appellant's 2004 year income tax abatement claim.  
	On the basis of these facts, the Board found and ruled that the appellant was not a person aggrieved by the Commissioner's refusal to abate a tax.  At no time did the Commissioner refuse to abate a tax; appellant simply failed to pay the amount shown as due on her own amended return.  The only decision the Commissioner made on appellant's application for abatement was the September 26, 2005 approval of her application.  Accordingly, the Board allowed the Commissioner's Motion to Dismiss and issued a decision for the appellee in this appeal.

OPINION
	The appellant has the burden of proving her entitlement to an abatement. See Commissioner of Revenue v. A.W. Chesterton Co., 406 Mass. 466, 468 (1990).  In the present appeal, there is no evidence in the record to support a finding that the appellant is entitled to an abatement. 
The record clearly established that the appellant was not a person aggrieved by the Commissioner's refusal to abate a tax under G.L. c. 62C, § 37 or § 39.  The Board can only grant relief pursuant to jurisdiction conferred on it by statute. Commissioner of Revenue v. Pat's Supermarket Inc., 387 Mass. 309, (1982). 
Under § 37, a person aggrieved by the assessment of a tax may apply to the Commissioner for an abatement.  The appellant has not shown how she was aggrieved by the tax she self-assessed by filing her amended return.  
Further, pursuant to § 39, any person aggrieved by the Commissioner's refusal to abate or refund a tax may appeal to the Board within sixty days from the date of the decision or within six months from the date the application for abatement is deemed denied.      
In the instant appeal, there was no denial of an abatement that was issued nor was there a deemed denial under the statute.  The appellant self-assessed an additional tax by filing an amended return and attached the amended return to her abatement application.  By notice dated September 26, 2006, the Commissioner informed the appellant that her abatement had been approved.  The Board found that this notice constituted an acceptance of the amended return as the amendment increased both personal income taxes owed as well as increased an amount of credit against the tax taken. 
	The appellant did not seek any abatement relief.  As her amended return was accepted as filed, the appellant could not meet the definition of a person aggrieved by the assessment of a tax or of a person aggrieved by the Commissioner's refusal to abate or refund a tax under either G.L. 62C § 37 or § 39.  See Liberty Life Assurance Co. v. State Tax Commissioner, 374 Mass. 25, 28 (1977) (ruling that taxpayer was "not aggrieved by the allowance in full" of its abatement application).
The appellant also claimed in her opposition to the Commissioner's Motion to Dismiss that the Commissioner's levy was improper. The claim that the levy was improper appears to be the result of a misinterpretation of the applicable statute but in any event the appropriateness of the Commissioner's levy is not a matter within the jurisdiction of this Board.  See Katz v. Commissioner of Revenue, Mass. ATB Findings of Fact and Report 1998-537, 544-45.
	As to the other claims raised by the appellant at the hearing before the Board, including whether her 2004 income taxes should have been withheld by the entity that paid her for her services, the Board need not address them because the Board has no jurisdiction over this appeal. 
	On the basis of the record in this appeal, the Board ruled that the appellant was not a person aggrieved for purposes of § 37 or § 39, because she was not aggrieved by the assessment of a tax and there was no "refusal of the Commissioner" to abate a tax.
	The Board's decision for the appellee granting the Commissioner's Motion to Dismiss and dismissing this appeal for lack of jurisdiction was promulgated on February 20, 2007.


					APPELLATE TAX BOARD

				  By:			   _____       	
				 Thomas W. Hammond, Jr., Chairman 


A true copy,
Attest:			__________		
    Assistant Clerk of the Board

ATB 2007-609